Citation Nr: 21022006 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-02 088 DATE: April 14, 2021 ORDER The claim for service connection for hypertension (claimed as high and low blood pressure) is denied. The claim for service connection for residuals of broken ribs is denied. REMANDED The claim for service connection for a right shoulder condition is remanded. The claim for service connection for a left shoulder condition is remanded. The claim for an initial rating higher than 10 percent for service-connected right knee chondromalacia patella with degenerative joint disease is remanded. The claim for service connection for a left knee condition is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s hypertension began during active service, began within one year from separation form service, or is otherwise related to an in-service injury or disease. 2. There is no current condition involving broken ribs or the residuals of the same. CONCLUSIONS OF LAW 1. The criteria are not met for service connection for hypertension (claimed as high and low blood pressure). 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria are not met for service connection for residuals of broken ribs. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Army from March 1975 to September 1981. A videoconference hearing was scheduled to take place in April 2019, for which the Veteran did not appear or request rescheduling, and accordingly the hearing request is considered withdrawn. Additionally, while one issue that was appealed was for service connection for a bilateral shoulder condition, the claim is characterized above as separate claims for both right and left side disorders to accurately identify the conditions. Service Connection Under VA law, direct service connection is available for current disability resulting from disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). Service connection also may be granted for disease diagnosed after discharge where incurred in service. 38 C.F.R. § 3.303(d) (2020). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). If there was chronic disease in service, reappearance at any later date is service-connected, unless clearly due to an intercurrent cause. If not chronic, there must be continuity of symptomatology to link in-service disability to post-service condition. See 38 C.F.R. § 3.303(b). But see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology principle limited to where involving those diseases already listed as “chronic” under 38 C.F.R. § 3.309(a)). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 1. The claim for service connection for hypertension (claimed as high and low blood pressure) is denied. Having considered the complete evidence of record, the Board finds that the evidence on the whole weighs against a finding of service connection for hypertension. The Veteran has a current diagnosis of hypertension. Records show the condition was diagnosed within the last 7-8 years. At his May 2015 VA examination, the examiner noted onset in 2014 per the Veteran’s history. The Veteran asserts that there was hypertension in service, that strenuous occupational duties in service brought on the condition, and that he had occupational duties working on aircraft that transported Agent Orange and that resulted in herbicide exposure, later causing hypertension. The preponderance of the evidence is against a finding that the Veteran was exposed to herbicide agents. The record shows he was stationed in Germany and Korea, but not in Vietnam. He has not asserted that he served in Vietnam. For the period of several months his service overlapped with what is the recognized Vietnam Era, but it was when the Veteran had commenced training exercises and was not at an overseas location. 38 C.F.R. § 3.2(f). Regarding his service in Korea, a Veteran who, during active military, naval, or air service, served in or near the Korean Demilitarized Zone (DMZ), during the period beginning September 1, 1967, and ending on August 31, 1971, shall be presumed to have been exposed to herbicide agents, unless there is affirmative evidence that he was not exposed. 38 U.S.C. § 1116B. The Veteran did not serve in Korea during this time period and therefore exposure to herbicide agents cannot be presumed. He served in Korea in 1977 and 1978. The evidence also does not support exposure to herbicides on a direct basis. The Veteran has not provided a lay description regarding exposure to herbicides in Korea, and the record does not provide probative evidence supporting a finding that he was exposed while serving there. In a June 2015 statement, the Veteran asserted that he worked on C-120 and C-123 transport planes that had transported Agent Orange before. Service personnel records show he routinely worked on the maintenance of OH-58 helicopters. Even if he worked with C-123 aircraft, the requirements for presuming herbicide agent exposure related to C-123 aircraft are not met. The presumption applies only where the Veteran had service in the Air Force or Air Force Reserve, and during the Vietnam War Era. See 38 C.F.R. § 3.307(6)(v). The Veteran served in the Army, and therefore is not presumed to have been exposed to herbicide agents based on working with C-123 aircraft. The preponderance of the evidence also does not support a finding that he was directly exposed to herbicide agents while working on either C-120 or C-123 aircraft. The Veteran is not competent to identify an herbicide agent as specified in 38 C.F.R. § 3.307(a)(6), as he does not have the requisite chemical knowledge. In this case, he has professed no specialized ability to detect herbicide agents in the environment, and his assertions of exposure are essentially speculative. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). His lay statements alone are not sufficient to establish that exposure to herbicide agents actually occurred, and his assertions must be weighed against other evidence of record, including the lack of documentary evidence of use of herbicides. Id. The preponderance of the evidence is against a finding that he was exposed to herbicide agents in service. As to whether hypertension was otherwise incurred in service, a May 2015 VA examination and opinion were obtained. The examiner diagnosed hypertension and stated it had its onset in 2014 by the Veteran’s history. The examiner reviewed the Service Treatment Records (STRs) and stated that the Veteran was not treated for hypertension during his military service nor did he have an elevated blood pressure reading while in the military other than a December 30, 1977 note when he was then having “much agony” due to left upper quadrant and left lower quadrant abdominal pain. Blood pressure was then 150/110 and later checked at 150/100 which the examiner stated was a response to abdominal pain. In reviewing STRs, the examiner noted a tab stating “low blood pressure”. This page stated a blood pressure of 138/84 “(which is normal and not low)” and his complaint then was painful testicle and “LBP” which can be an abbreviation of low back pain not low blood pressure. The examiner noted that at his January 1981 separation examination, there was no mention of prescription for hypertension and blood pressures were 122/72 sitting, 118/68 recumbent, and 124/70 standing. The Veteran stated that he had been on antihypertensive medication for one year prior to the examination. He stated that he was told at times that his blood pressure was elevated but had not been on medication until he was incarcerated. He felt “flushed” when blood pressure was elevated. Based on these findings, the examiner stated the opinion that “It is less likely than not the Veteran had any hypertension or hypotension while in the military that has a nexus to the diagnosis of hypertension that was made one year ago.” Reviewing this opinion and in light of other evidence, there is not shown the element of causation, because the VA opinion offered is consistent with the record does not show a disorder of service origin. The opinion was based on factual review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (the thoroughness and detail of a medical opinion is a factor in assessing the probative value of the opinion). Also a sufficiently stated rationale was given, that that STRs showed that the December 1977 blood pressure increase was situational, due to other coincidental medical conditions, and further on separation blood pressure readings were within normal limits. There is also no medical evidence or opinion to the contrary. The Veteran submitted a release form so that the RO could attempt to obtain the medical records from the facility where he was incarcerated. In March 2017, the RO contacted the correctional facility to request the records and the facility responded that there were no records available. The Board may not rely on an absence of treatment records as support for denying a claim. However, in this case, the Veteran specifically informed the VA examiner that the condition was diagnosed in 2014, many years after separation from service. Presumptive service connection for hypertension as a chronic disease is not warranted because it did not manifest within one year of the Veteran’s separation from service. 38 C.F.R. § 3.309(a). In support of direct service connection, in June 2015, the Veteran asserted that forced marches under heavy loads, exposure to extreme temperatures, altitude changes, and performing hazardous and stressful duty caused his hypertension. The Veteran is competent to state that he experienced these situations. However, he is not competent to state that these situations caused his hypertension. determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Lay persons are competent to provide opinions on some medical issues. Id. at 435. However, the specific issue in this case, the etiology of his hypertension falls outside the realm of common knowledge of the Veteran in this case. Determining the etiology of hypertension involves medical inquiry into biological processes, pathology, physiological functioning, and understanding of the impact of the situations described above on the human body. These are internal physical processes that are not readily observable to a lay person. The Veteran in this case has not been shown by the evidence of record to have the skills, experience, or medical training needed to provide a competent etiology opinion for his hypertension. For these reasons, the preponderance of the evidence weighs against the claim for hypertension, VA’s benefit-of-the-doubt doctrine is not applicable, and the claim is being denied. 2. The claim for service connection for residuals of broken ribs is denied. The Veteran was treated for rib symptoms in service. However, it is the lack of findings of current disability that is the key factor as to the denial of this claim. In the STRs, a January 1978 entry stated that the Veteran complained of having right rib pain. There was no prior history of rib pain and it was described as being localized to the lower portion of the rib cage. The assessment stated was rule out rib fracture. A subsequent January 1978 record stated that the Veteran complained of the left ribs hurting over a period of three weeks, stated he kept separating them by “horsing around too much.” The assessment was rib pain from original injury. A January 1980 notation indicated that the Veteran had a “possible broken rib,” left chest. The Veteran had been at wrestling practice and had present another individual roll over himself causing the injury. On further evaluation the clinical impression stated was a mild costochondral separation. On the Veteran’s separation examination in January 1981 there was no notation of any rib symptoms or diagnoses. On a June 2018 VA outpatient consult the Veteran indicated having had a history of chest pain, no palpitations, and having had shortness of breath especially with exertion, no cough. A chest x-ray was completed and the results were normal. The Veteran’s own account of these events is that the ribs were broken in a wrestling practice while in Korea. They were cracked in the middle and broken away from the sternum. They were treated at the battalion aid station. No x-rays were taken. According to the statement further the treatment was that the area was wrapped with several bandages and he was sent back to duty. He stated that the physician who treated him in Korea was later court martialed for not treating medical problems correctly, and this was under the orders of the battalion colonel. The Veteran stated that because of this the ribs did not heal correctly and he had rebroken them several times over the years. He stated he had constant pain in his side and sternum, and that he had a lump of “painful” bone. On VA examination May 2015, the Veteran described the rib cage injuries documented in service during a wrestling practice. X-rays were reported as negative at that time. The course since onset was stable. There were no treatments being done. The were no history of hospitalization or surgery, history of trauma to the bones, history of osteomyelitis, inflammation, pain, fracture site motion, history of deformity, general debility, assistive devices needed. The condition did not affect motion of a joint. The examiner stated that for general occupational effect, there were “no significant effects” and no impact on usual daily activities. According to the VA examiner further, no x-rays were performed for the examination as it would be too difficult to assess the age of any old rib fractures that might show and also that the last reported x-ray while in the military was with no factures. Also, there were no rib complaints on the January 1981 separation exam. The diagnosis was of a soft tissue injury rib cage, resolved. The examiner then stated the following opinion: “This Veteran did have rib cage injuries x2 while in the military and the most recent x-rays done in 1979 were negative for any fractures. With this exam, there was no rib cage tenderness and lungs were clear. He stated that he did fracture the ribs when he came out of the military and this was in the 1990s when he also sustained a right shoulder injury. Being there were no residual clinical findings of rib cage conditions, and the history of rib injuries after his military service, no x-rays were performed for this exam and it would be too difficult to assess the age of any old rib fractures that may show and also that the last reported x-ray while in the military was with no fractures. Also, there were no rib complains on his 1/30/81 separation exam. Thus it is less likely than not that this Veteran has any residual rib cage conditions / fractures that were incurred while in the military. Based on the medical evidence and findings obtained, the Board considers the competent evidence of record to effectively weigh against service connection. The key basis for that determination is absence of a disability for VA purposes. A chest x-ray was done a few years after VA examination in June 2018 which was normal. There is not medical evidence or reported history to the contrary that the Veteran recently had a broken rib injury, or residuals of a prior such injury. In June 2015, the Veteran stated that because of rib pain he was unable to do most of the work that he had been trained to do and which he held as a job prior to the degeneration of his ribs. In the absence of a diagnosis or otherwise identified disease or injury, pain must reach a level of functional impairment of earning capacity to be considered a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). This must be shown by the Veteran. In this case, the Veteran has stated that his rib pain prevents him from doing work that he was trained to do. However, he does not describe the work he used to do or the jobs he was trained for. He has not shown that his rib pain causes functional impairment of earning capacity. The VA medical opinion finding that he does not have a rib disability is the most probative evidence of record. Under VA law, a current disability is the first essential criterion to establish service connection. See generally, Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (“Compensation for service-connected injury is limited to those claims which show a present disability.”); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The most probative evidence of record does not show that the Veteran has a current rib disability for VA purposes. For these reasons, the preponderance of the evidence is unfavorable. VA’s benefit-of-the-doubt doctrine does not apply in this situation and the claim is being denied. REASONS FOR REMAND 1. The claim for service connection for a right shoulder condition is remanded. 2. The claim for service connection for a left shoulder condition is remanded. In his June 2015 statement, the Veteran described functional impairment of his shoulders. He stated that he had loss of movement in both of his shoulders, that he was unable to raise his arms without pain, and that his shoulder joints clicked when they moved. At his May 2015 VA examination, x-rays showed bilateral AC degenerative changes. Therefore the Veteran has right and left shoulder disabilities. The VA examiner’s opinion regarding the left shoulder disability is internally inconsistent. X-rays show degenerative changes of the AC joint, but the examiner then concluded that the Veteran did not have a left shoulder disability. An addendum opinion is needed to rectify this conflicting evidence about the left shoulder. Regarding both shoulders, the examiner did not address the Veteran’s lay contentions regarding carrying heavy loads including on forced marches. An addendum opinion is needed to consider the Veteran’s lay contentions. 3. The claim for an initial rating higher than 10 percent for service-connected right knee chondromalacia patella with degenerative joint disease is remanded. The Veteran last had a VA examination for his right knee condition in 2015, and since that was several years ago, an updated evaluation is needed. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) (“Where the record does not adequately reveal the current state of the claimant’s disability...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.”). 4. The claim for service connection for a left knee condition is remanded. The Board is requesting another opinion on this claim because when reviewing the STRs by themselves arguably a left knee condition was more prevalent than the right, and the Veteran’s own reported medical history should similarly be discussed in reaching any supported opinion. The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to a suitable clinician to provide an addendum opinion for the Veteran’s right and left shoulder conditions. The entire claims file and a copy of this remand must be made available to the clinician for review. A physical or telehealth examination of the Veteran is only necessary if deemed so by the clinician. The clinician must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right or left shoulder disabilities began during active service, is related to an incident of service, or if arthritis is diagnosed, began within one year after discharge from active service. Although an independent review of the claims file is required, the clinician’s attention is called to the following: a. There are x-rays documenting AC degenerative changes. b. The Veteran’s June 2015 statement where he describes his shoulder symptoms and described his in-service events that he believed caused his shoulder disability, including a parachute jump and having to carry heavy gear. The clinician must provide a complete rationale for his or her opinion(s). 2. Schedule the Veteran for a VA examination for a claimed left knee disorder, and on the severity of the already service-connected right knee disorder. The entire claims file and a copy of this remand must be made available to the clinician for review. The examiner is requested to provide the current diagnosis for the claimed left knee disorder. Then opine whether the left knee disability is at least as likely as not (50 percent or greater probability) was incurred in active military service or is otherwise etiologically related to service, considering the complete Service Treatment Records (STRs) along with the reported history of symptoms during and then after service. Next, the examiner is asked to then determine the current severity of the service-connected right knee disorder. The examiner should provide a full description of the disability and report all signs and symptoms. A complete rationale should be provided for the opinions provided. 3. Review the claims file. If the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Then readjudicate the claims. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.