Citation Nr: 21014710 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-35 588 DATE: March 15, 2021 ORDER Service connection for degenerative arthritis of the lumbar spine is denied. Service connection for hypertension is denied. REMANDED Entitlement to service connection for a sinus disorder, to include sinusitis and allergic rhinitis, is remanded. FINDINGS OF FACT 1. The Veteran’s degenerative arthritis of the lumbar spine and hypertension were not chronic in service, did not manifest to a compensable degree within one year of service separation, and were not continuous since service separation. 2. The Veteran’s degenerative arthritis of lumbar spine and hypertension are not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1977 to November 1981. This case originally came before the Board of Veterans’ Appeals (Board) on appeal from August 2014 and December 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Board reopened and remanded the claims on appeal. In October 2020, the Board again remanded the claims for further development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.30 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Only chronic diseases listed under 38 C.F.R. § 3.309(a), including arthritis and hypertension, are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of 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 of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner’s opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Lumbar Spine Disorder The Veteran maintains that her current spine disorder first manifested in service and has continued since separation from service. Initially, the Board finds that the Veteran has been diagnosed with degenerative arthritis of the lumbar spine. See December 2020 VA spine examination report. Service treatment records show that the Veteran complained twice of low back pain in 1979, but no further details were provided. Service records also include a September 1981 Report of Medical Examination, conducted at service discharge. At that time, a clinical evaluation of the Veteran’s spine was “normal” and there was no indication of a spine disorder or back-related symptoms. Further, in an October 1981 Report of Medical History, completed by the Veteran at service separation, she specifically checked “NO” as to having “arthritis” of “recurrent back pain.” The Board finds that such absence of findings or treatment for arthritis during service, in this context, is highly probative contemporaneous evidence that the Veteran did not have characteristic manifestations of arthritis during in service. See Kahana v. Shinseki, No. 24 Vet. App. 428, 439 (2011). For these reasons, the Board finds that the Veteran’s arthritis of the lumbar spine was not chronic in service. Further, the evidence demonstrates that symptoms of lumbar spine arthritis have not been continuous since service separation. A November 1993 New Patient Evaluation report from Dr. M. from the Arthritis and Rheumatism Associates, indicated that the Veteran complained of diffuse joint pain “over the last 6 months,” which included lower back pain with radiation down both extremities. It was specifically noted that the Veteran’s dorsal and lumbosacral spine were “normal” at that time. VA treatment records in 2006 show the first notation of a diagnosis of arthritis of the spine. During a January 2007 VA treatment record, the Veteran stated that she had constant back pain “since 1990,” which the Board notes is approximately 9 years following service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). For these reasons, the Board finds that symptoms relating to lumbar spine arthritis were not continuous since service separation. There is also no evidence that arthritis manifested within one year following service. The Board further finds that the weight of the competent evidence of record demonstrates that the currently diagnosed lumbar spine arthritis is not related to or caused by service. Pursuant to the Board’s remand in May 2019, the Veteran underwent a VA spine examination and a medical opinion was obtained in June 2019. During the evaluation, the Veteran reported that her condition started in 1979 after basic training where she was required to carry heavy ruck sacks. She also indicated that her pain progressively worsened over time. The examiner diagnosed the Veteran with thoracolumbar strain with disc protrusion and radiculopathy. It was further noted that diagnostic testing did not show arthritis. The examiner then opined that the Veteran’s spine disorder was not related to service. In support of this opinion, the examiner stated that there were no findings in medical records indicating issues while in service or in the following years to ascribe service correlation with the current diagnosis. The Veteran’s mild degenerative arthritis was noted to be likely a function of age. The Board finds that the May 2019 medical examination and medical opinion lacks probative value. In this regard, although the examiner noted (in the medical opinion) that the Veteran had mild degenerative arthritis, the VA examination report did not diagnose the Veteran with degenerative arthritis of the spine. Further, it appears that the examiner failed to properly review the Veteran’s service records, which include complaints of low back pain in service. Given the inadequacies of the June 2019 opinion, VA obtained another medical opinion in December 2020. At that time, the examiner indicated that a review of the record had been completed. In providing a negative nexus opinion, the examiner noted that the Veteran had a diagnosis of systemic lupus (a nonservice-connected disability) that was “global in nature” and could impact her back pain. Although the examiner acknowledged the Veteran’s statements regarding her back pain starting in service, the examiner stated that the medical records did not support this contention. Although the Veteran was seen for back pain twice in 1979 during service, her separation examination report showed no signs of back pain. The examiner also noted that, following service separation, the Veteran worked in various jobs requiring manual labor. In her Social Security Administration disability application, the Veteran reported that her jobs had involved lifting and carrying. There was nothing in the record to indicating that the Veteran had military-related back problems that led to a chronic disability. The Board finds that the December 2020 VA medical opinion discussed above is probative as to whether the Veteran’s currently diagnosed lumbar spine arthritis is related to service. The examiner reviewed and discussed service records, post-service medical evidence, and the Veteran’s history. Moreover, the medical opinion was supported by a well-reasoned rationale, which was consistent with the medical evidence of record. The Board has also considered the Veteran’s statements regarding her belief that her spine disorder is related to service. However, as a lay person, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the etiology of the medically complex disorder of arthritis. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Arthritis is a medically complex process because of its multiple possible etiologies and requires specialized testing to diagnose (e. g., x-rays and/or MRI). Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also 38 C.F.R. § 4.71a, Diagnostic Code 5003 (arthritis is shown by x-rays). For these reasons, and based on the evidence of record, the Board finds that the weight of the competent, credible, and probative evidence is against a finding of relationship between the Veteran’s degenerative arthritis of the lumbar spine and service. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Hypertension The Veteran seek service connection for hypertension. Hypertension refers to persistently high arterial blood pressure. For VA rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm, or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2020). This provision also states that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. The Veteran’s post-service medical records confirm a diagnosis of hypertension and diabetes. See June 2019 VA examination report. However, the Board finds that no diagnoses, treatment, or chronic symptoms of hypertension occurred during service or were manifested during service. Service records show the following blood pressure readings: November 1977 (140/98), June 1980 (120/80), September 1980 (104/72 and 112/78), October 1980 (128/78), March 1981 (116/80), May 1981 (112/80), July 1981 (110/72), August 1981 (102/70 and 100/60), September 1981 (100/74), and October 1981 (120/82). In a Report of Medical Examination, conducted at service separation, the Veteran’s blood pressure was 120/82. There was also no indication that the Veteran had been treated for hypertension during service. Thus, the Board finds that the most probative evidence of record weighs against the existence of any hypertensive disease in service. The first indication of hypertension is not shown until 2000, which is approximately 19 years after the Veteran’s separation from service. In this regard, VA treatment records indicated that the Veteran was diagnosed with hypertension in 2000. See, e. g., September 2000 VA primary care note; see also Maxson, 230 F.3d 1330. For these reasons, the Board finds that symptoms relating to hypertension were not continuous since service separation. There is also no evidence that the Veteran’s hypertension manifested within one year following service. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of persistent symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, the Veteran filed other claims for service connection, but did not mention hypertension at any time prior to her initial October 2008 claim. For example, in October 2000, the Veteran filed claims for service connection lupus, arthritis, a skin disorder, a psychiatric disorder, sinusitis, hair loss, headaches, excessive bleeding, TMJ, and a connective tissue disorder, but did not mention symptoms of hypertension at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which she is experiencing symptoms that she believes are related to service. In other words, the Veteran demonstrated that she understood the procedure for filing a claim for VA disability compensation, and she followed that procedure in other instances where she believed she was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting rather than for certain symptomatology to be omitted. Thus, the Veteran’s inaction regarding a claim for hypertension, when viewed in the context of her action regarding her other claims for compensation, may reasonably be interpreted as indicative of the Veteran’s belief that she did not sustain hypertension in service. The Board finds that this evidence weighs against a finding of continuous hypertension symptoms since service separation. Additionally, there is no competent evidence of a nexus between the Veteran’s hypertension and service. The Veteran has not presented a medical opinion relating her hypertension to her period of active duty service. In a September 2019 VA medical opinion, the examiner indicated that there were no medical records indicating onset, treatment, or diagnosis of hypertension in the 1980s. Further, the examiner explained that a single incidental elevated blood pressure reading in 1977 (i.e., 140/98), was not sufficient to render a diagnosis. The examiner also stated that a diagnosis of hypertension requires objective findings of elevated blood pressure readings. The Board finds this opinion to be adequate and highly probative, as it was based on a thorough review of the record and included a detailed a sufficient rationale. The Board notes that a review of a May 2014 VA treatment record shows that the Veteran reported having “HTN because she has back and knee pain 10/10.” However, the Veteran has not been awarded service connection for a spine or knee disability. As such, secondary service connection for hypertension based on the back and knee pain is not permitted as a matter of law at this time. The Board has also considered the Veteran’s statements regarding her belief that her hypertension is related to service. However, as a lay person, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the etiology of the medically complex disorder of hypertension. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Hypertension is a medically complex process because of its multiple possible etiologies. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007)/ For these reasons, and based on the evidence of record, the Board finds that the weight of the competent, credible, and probative evidence is against a finding of relationship between the Veteran’s hypertension and service. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Sinusitis/Rhinitis The Board notes that the Veteran’s service treatment records show numerous complaints of sinus problems, including nasal drainage, cough, sinus tenderness, headaches, congestion, earaches, and sinus pain. VA obtained a medical opinion in December 2020 regarding the Veteran’s sinus/rhinitis disorder. At that time, the examiner noted that a medical opinion was requested without an in-person evaluation. The examiner stated that she was having difficulty confirming whether there was a chronic sinus diagnosis and whether the Veteran’s symptoms had been ongoing since service. The Board finds that a remand is warranted for several reasons. In an effort to assist VA in determining whether the Veteran’s symptoms are ongoing, updated VA records should be obtained and associated with the claims file. Notably, the most recent VA treatment record in the claims file is dated in May 2018, almost three years ago. Updated VA treatment records may shed some light as to whether the Veteran has continued to receive treatment for her sinus disorder. Further, an October 2014 VA CT scan (dated within the current appeal period) revealed “a small mucous retention cyst or polyp” in the left maxillary sinus. Notably, the December 2020 VA examiner did not address this finding. On remand, the Board finds that a new VA examination and medical opinion should be obtained to properly address the Veteran’s symptoms (both current and past). The medical opinion should clarify the Veteran’s diagnosis, with specific discussion regarding the sinus cyst/polyp discovered in 2014. The matters are REMANDED for the following actions: 1. Obtain all VA treatment records since May 2018 and associate them with the claims file. 2. Then, schedule the Veteran for a VA sinus examination. The claims folder must be provided to and reviewed by the examiner as part of the examination. The examiner should elicit from the Veteran a history of symptoms and treatment relating to her claimed disorder. All appropriate testing should be conducted. The examiner is asked to address the following: (a.) Indicate whether the Veteran has or has had a diagnosis of sinusitis and/or allergic rhinitis during the appeal period, i.e., since approximately September 2014. **Please address the relevance, if any, of the October 2014 VA CT scan showing “a small mucous retention cyst or polyp” in the left maxillary sinus. (b.) For each diagnosed disorder, state whether it is at least as likely as not (50 percent or greater probability) that such disorder first manifested in service, was incurred in service, or is otherwise related to service. **In providing this opinion, the examiner should discuss the relevance, if any, of the numerous service treatment records discussing the Veteran’s in-service symptoms relating to nasal drainage, cough, sinus tenderness, headaches, congestion, earaches, and sinus pain. A thorough rationale must be provided for all opinions. 3. Then, readjudicate the remaining claim on appeal. Megan R. Thomas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.