Citation Nr: 21021818 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-30 610 DATE: April 14, 2021 ORDER Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. An initial rating higher than 10 percent for hypertension is denied. REMANDED Service connection for a lumbar spine disorder is remanded. Service connection for chronic diarrhea, also claimed as irritable bowel syndrome (IBS), is remanded. Service connection for a sinus disorder is remanded. FINDINGS OF FACT 1. The most probative evidence is against a finding that the Veteran’s current right and left knee disorders had their onset during active duty service or are related to such service; or that arthritis in either knee was manifested within one year of the Veteran’s discharge from active duty service. 2. The Veteran’s hypertension has not been manifested by diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more at any time during the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for an initial rating higher than 10 percent for hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1976 to August 1979. These matters come before the Board of Veterans Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in March 2013, November 2013 and April 2014. A transcript of the Veteran’s November 2014 testimony before the undersigned Veterans Law Judge is of record. She did not report to a January 2021 hearing. The claims were remanded by the Board in May 2018. The Board also remanded a claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and bipolar disorder, and a claim for entitlement to a total disability rating based on individual unemployability (TDIU). A January 2020 rating decision granted service connection for PTSD with bipolar disorder and assigned a 100 percent rating effective February 23, 2011; the issue of entitlement to a TDIU from that date is considered moot. Those claims are no longer before the Board on appeal. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In cases where a veteran served continuously for 90 days or more during active service and arthritis manifests to a degree of 10 percent within one year from the date of service termination, the arthritis shall be presumed to have been incurred in service even though there is no evidence of arthritis during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Service connection for a right knee disorder 2. Service connection for a left knee disorder The Veteran seeks service connection for a bilateral knee disorder. She testified that her knee problems are a result of running during basic training; that she fell during service while running up and down hills and injured both knees; that she was treated in service and told she would have knee problems as a result of continual falling; and that she has had problems with her knees since that time. The Veteran has been diagnosed during the appeal with bilateral knee degenerative arthritis so the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service. While service treatment records do not document any complaints specific to either knee, since a September 20, 1976 service treatment record confirms a fall while running, the claims were remanded in May 2018 in order obtain an opinion. The Board previously noted that it was not overlooking a February 2015 opinion from Dr. G., which indicated that the Veteran’s right knee disability was more likely as not service connected by reason of her fall during basic training, while also noting that the opinion was not accompanied by sufficient rationale. The lack of rationale renders this opinion of low probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The examiner who conducted the November 2019 knee examination determined that the claimed right and left knee conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that there were no symptoms or complaints concerning the right or left knee while on active duty and that the service separation examination revealed no right or left knee condition. The examiner also noted that post-service medical records include complaints of chronic right knee pain beginning in January 1996, at which time it was noted that the Veteran stated her right knee pain began after a fall that occurred one and one-half years prior to that visit (1994) and that complaints of left knee symptoms began in 1999, which the Veteran stated again was due to a fall. The examiner concluded that review of the file indicates that there was no evidence to indicate that the right or left knee conditions were caused in or by service. The November 2019 VA examiner addressed the February 2015 opinion from Dr. G. and stated that s/he disagreed because Dr. G’s opinion was based solely on the Veteran’s subjective reporting of a fall that resulted in knee pain, and there is no evidence of a fall occurring in service that caused harm to the knees or required treatment for knee symptoms. For this reason, it was less likely than not that an undocumented fall during service (1976-1979) caused the Veteran’s complaints of an unrelated fall with subsequent right knee pain in 1994.   The preponderance of the evidence is against the claims for service connection for disorders of the right and/or left knee on a direct basis. As noted above, service treatment records do not document any complaints related to either of the Veteran’s knees and while the Veteran is competent to report that she fell during service injuring her knees, the Board does not find this assertion to be persuasive since there is no indication when seeking treatment in September 1976 after falling while running. See AZ v. Shinseki, 731 F.3d 1303, 1315 (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). Service connection is also not warranted on a presumptive basis in the absence of evidence of arthritis in either knee within one year of the Veteran’s August 1979 discharge from service. While the Veteran believes that her current knee disorders are related to service, as a lay person, she has not shown that she has specialized training to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The diagnosis and etiology of a knee disorder are matters not capable of lay observation and require medical expertise to determine. Moreover, whether the symptoms the Veteran claims to have experienced in service or following service are in any way related to her current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Thus, the Veteran’s own opinion regarding the etiology of her current knee disorders is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions and the private opinion provided by Dr. G.   In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims for service connection for left and right knee disorders, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Increased Rating 3. An initial rating higher than 10 percent for hypertension Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Service connection for hypertension was established in the March 2013 rating decision that is the subject of this appeal. A 10 percent rating was assigned under 38 C.F.R. § 4.104, Diagnostic Code 7101, effective April 20, 2011. The Veteran seeks a higher initial rating but has not provided any argument in support of the claim. Diagnostic Code 7101 provides the rating criteria for hypertensive vascular disease (hypertension and isolated systolic hypertension). Ratings higher than 10 percent are provided for diastolic pressure predominantly 110 or more; systolic pressure predominantly 200 or more (20 percent); diastolic pressure predominantly 120 or more (40 percent); and diastolic pressure predominantly 130 or more (60 percent). The medical evidence of record dated since April 20, 2011, does not show diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more based on blood pressure readings taken at numerous VA and private medical visits, to include VA examinations. For these reasons, the Board finds that an initial rating higher than 10 percent is not warranted for the Veteran’s hypertension. REASONS FOR REMAND 1. Service connection for a lumbar spine disorder is remanded. 2. Service connection for chronic diarrhea, also claimed as IBS, is remanded. 3. Service connection for a sinus disorder is remanded. The addendum opinions obtained in conjunction with these claims did not comply with the Board’s May 2018 remand instructions; updated addendums are needed. The matters are REMANDED for the following action: 1. Return the claims file to the VA examiner who provided the November 2019 addendum opinion on the claim involving the lumbar spine. If that examiner is not available, the opinion should be provided by another qualified VA examiner. Following review of the claims file, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current lumbar spine disorder manifested in service or is otherwise related to service. The examiner should explain why or why not, and specifically address the September 1976 in-service fall and the February 2015 private opinion from Dr. G. that the Veteran’s lumbosacral disability was related to her in-service falls.   2. Return the claims file to the VA examiner who provided the November 2019 addendum opinion on the claim involving diarrhea/IBS. If that examiner is not available, the opinion should be provided by another qualified VA examiner. Following review of the claims file, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current diarrhea/IBS manifested in service or is otherwise related to service. The examiner should explain why or why not and should specifically address the February 2015 private opinion from Dr. G. that the Veteran had IBS that was more likely as not related to her treatment for diarrhea during service. 3. Return the claims file to the VA examiner who provided the December 2019 addendum opinion on the claim involving the sinus disorder. If that examiner is not available, the opinion should be provided by another qualified VA examiner. Following review of the claims file, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current sinus disorder manifested in service or is otherwise related to service. The examiner should explain why or why not and should specifically address the service treatment records from November 4, 1976, January 20, 1977, August 17, 1977, October 19, 1977, and October 5, 1978, that document additional instances of sinus symptomatology.   4. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.