Citation Nr: 21030308 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-42 886 DATE: May 18, 2021 ORDER Entitlement to service connection for a left shoulder disability is dismissed. Entitlement to service connection for a back disability is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for diabetes mellitus is denied. REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle or foot disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. FINDINGS OF FACT 1. At the July 2020 virtual hearing with the Board of Veterans' Appeals (Board), the appellant explicitly, unambiguously, and with full understanding of the consequences, withdrew from appellate consideration the claim of entitlement to service connection for a left shoulder disability. 2. The preponderance of the probative medical evidence is against finding that the appellant has a current back disability that was incurred in or is related to service. 3. There is no probative medical evidence indicating that the appellant's hypertension was incurred in or caused by a period of ACDUTRA. 4. There is no probative medical evidence indicating that the appellant's diabetes mellitus was incurred in or caused by a period of ACDUTRA. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the appellant of the claim for service connection for a left shoulder disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 4. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty for training (ACDUTRA) from September 15, 1978 to December 21, 1978, with additional service in the Army Reserve. This case comes to the Board of Veterans' Appeals from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office. Left Shoulder Disability Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. At the July 2020 virtual Board hearing, the appellant explicitly, unambiguously, and with full understanding of the consequences, asked to withdraw the claim of entitlement to service connection for a left shoulder disability. See, e.g., DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of this issue, and it is dismissed. Back Disability The appellant contends that he has a back disability that began during his active duty service. At the July 2020 Board hearing, the appellant testified that during training in active duty, he stepped in a ditch, fell, and wrenched his back. He said that he first received treatment for his back in the 1990s. He said that he also had a fall while working for the city of Philadelphia in 2005, and that this worsened his back problems. Generally, service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When a claim for service connection is based on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA; or for inactive duty for training (INACDUTRA), there must be some evidence that the appellant became disabled as a result of an injury (not disease) incurred or aggravated in the line of duty during the period of INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of ACDUTRA or INACDUTRA service alone. Id.; see also 38 U.S.C. § 101(2), (24); 38 C.F.R. §§ 3.1(d), 3.6. In this case, the appellant has asserted that he injured his back when he tripped and fell during training during his period of ACDUTRA which lasted from September 1978 to December 1978. The Board has also reviewed his Reserve records for any other indications of a back injury which occurred during any other period of ACDUTRA or INACDUTRA. The appellant's service treatment records show that in October 1978, the appellant reported lower back pain and had pain with palpation. He was diagnosed with strain. In November 1978, he reported having mid-back pain and cramps in his legs. His active range of motion was within normal limits. The November 1978 separation examination found the spine to be normal. A June 1980 physical examination found that the spine was normal. The appellant wrote of the Report of Medical History that he had an injured back, but checked "no" for recurrent back pain. The appellant's private treatment records show that since at least 2014, he has reported back pain, and he has been diagnosed with lumbago. The Board therefore accepts that the appellant does have a current disability. The appellant attended a VA examination in February 2014. The appellant reported that he continued to have occasional pain in his back with prolonged walking, standing, and bending. He complained of pain that occasionally radiated to his left leg. The examiner wrote that the appellant had undergone lumbar laminectomy with fusion in 2007. The examiner wrote that the appellant's back condition was less likely as not caused by or a result of injury during service, because the injury in October 1978 had resolved, and the appellant did Reserve duty for 7 years after that without problems. He also noted that the November 1978 separation examination was normal. After reviewing all of the evidence of record, the Board finds that entitlement to service connection is not warranted. While the appellant did report back pain during a period of ACDUTRA, and he does have a current back disorder, there is no probative nexus evidence linking these two disorders. The Board finds the VA examiner's opinion to be highly probative evidence that weighs against the claim. The opinion, which was based on review of the appellant's documented and asserted medical history and an in-person examination, constitutes probative evidence on the medical nexus question. See Prejean v. West, 13 Vet. App. 444 (2000). The Board finds that this medical opinion was fully supported by the evidence of record, and the examiner provided adequate rationale for his findings. There are no contradictory medical opinions of record which came to a different conclusion regarding the appellant's back disorder. The appellant has not submitted any other medical evidence regarding the etiology of his current lumbago. While the appellant may believe that his lumbago is related to service or was aggravated by service, such lay assertions do not constitute probative medical evidence. The appellant is competent to describe his symptoms as he perceives them, but as a lay person, he is not competent to provide a medical diagnosis of his back pain or to opine on the etiology of his current back pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). To the extent that he argues he has a current back disorder that was caused by a fall during ACDUTRA training, his assertions are outweighed by the findings of the more competent February 2014 VA examiner. The Board acknowledges that arthritis is a chronic disorder, and when such a disorder is diagnosed during active duty service, or within a year of such service, or there is a continuity of symptomatology for such a disorder since service, service connection can be granted on a presumptive basis. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1336 (Fed. Cir. 2013). In this case, however, the appellant was not diagnosed with arthritis of the spine in service, nor at any time after service, and this presumption is not applicable in the current case. The Board also acknowledges that the appellant testified in at the July 2020 Board hearing that he had recently received treatment at a pain clinic for his back pain. While these treatment records are not part of the record, the Board finds that because the existence of a current diagnosis is not in dispute, and there is no indication that these records would relate to the question at issue here, that of a current nexus, the failure to obtain these records is harmless, and does not, on its own, warrant a remand for further development. Furthermore, the appellant has been afforded ample opportunity to provide authorization for private treatment records, and treatment records from his other treatment providers have already been obtained by VA. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting the duty to assist is a two-way street that requires a claimant's active participation in a claim for VA benefits). For the foregoing reasons, the Board finds that the evidence demonstrates that the appellant's current back disability was not incurred in or related to service, nor has he been found to have a chronic disorder such as arthritis that began during ACDUTRA or within a year of such service. The claim for service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hypertension The appellant contends that he has hypertension, and that this disorder had its onset during his military service. At the July 2020 Board hearing, the appellant stated that when he enlisted in service, his blood pressure was "pre-hypertension," and that over the course of the time he was in service, it escalated to full hypertension. He stated that he had an abnormal EKG in service, that he was told something was wrong with his heart, and that he was given medication. The Board has reviewed all of the medical evidence, but unfortunately does not find that service connection for hypertension is warranted. The appellant's August 1978 entrance examination for his 3-month period of ACDUTRA does not indicate any blood pressure disorder, and his measured blood pressure was 120/80. At his November 1978 separation examination, his blood pressure was 108/68. The appellant's Reserve treatment records show only normal blood pressure readings. In August 1979, during separate evaluations for an upper respiratory infection, the appellant's blood pressure was 106/72 and 122/70. During treatment for possible strep throat in April 1981, his blood pressure was 120/90. In May 1983, his blood pressure was 122/78. In May 1984, his blood pressure was 130/80. At a June 1984 physical examination, his blood pressure was 120/80. The appellant's private treatment records show that he has been diagnosed with essential hypertension and that he takes medication for this, but the earliest record of this is in January 2014, when he was found to have blood pressure of 150/99. Based on the evidence of record, the Board is unable to find any evidence indicating that a hypertension disorder manifested during the appellant's ACDUTRA or that such a disorder is related to any injury during ACDUTRA or INACDUTRA Reserve service. The appellant's service treatment records do not show any instances of a blood pressure reading that were significantly elevated, and there is no indication that he was ever diagnosed with hypertension or "pre-hypertension." The term "hypertension" means that the diastolic blood pressure is predominantly 90 mm. or greater, or systolic blood pressure is predominantly 160 or more. 38 C.F.R. § 4.104 , Diagnostic Code 7101, n.1. A diagnosis of hypertension "must be confirmed by readings two or more times on at least three different days." Id.; Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). In this case, the appellant's blood pressure readings were never found to be predominantly at this level. While the appellant had one blood pressure reading with diastolic pressure of 90 in April 1981, when he was sick with a sore throat and possible strep throat, this was an isolated finding during illness that was not repeated in any subsequent readings, and no examiner ever indicated that the appellant had a hypertension condition during his service. The appellant has not provided any other information or evidence indicating that his hypertension began in service, and there are no medical opinions or findings in the record indicating that hypertension is related to service. The Board acknowledges that the appellant has testified that he was diagnosed with hypertension in service, including being told that something was wrong with his heart, and that he was given medication for it. Unfortunately, the Board finds that this assertion is not credible in light or the evidence contained in the service treatment records. The appellant's service treatment records show numerous blood pressure readings, and at no time was he found to have hypertension or have 3 readings that showed levels of sufficient severity to be considered a hypertension disorder. The records also do not show that he was ever diagnosed with a heart disorder or given medication for a heart disorder during any period of ACDUTRA. The Board finds that these records outweigh the appellant's assertions that he was diagnosed with hypertension in service, which are not found to be credible. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428 (2011) (the Board may consider a lack of notation of a medical condition or symptoms where such notation would normally be expected). The Board acknowledges that the appellant was not afforded a VA examination for hypertension. VA is obliged to provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, while the appellant has been shown to have a current hypertension disability, there is absolutely no evidence indicating that any event, injury, or disease occurred in service which could have caused his hypertension, nor has the appellant asserted that such an event occurred. In the absence of any such evidence, the Board does not find that a VA examination is warranted. In sum, the Board finds that the most probative evidence does not indicate that the appellant's hypertension began during his Reserve reservice, and there is absolutely no evidence of record which indicates any causal connection between the appellant's hypertension, and this evidentiary deficiency concerning the nexus element is fatal to the claim. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). The weight of the evidence of record preponderates against finding that hypertension began during any period of ACDUTRA or is related in any way to service. The claim is denied. The Board has again considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b). Diabetes Mellitus At the July 2020 Board hearing, the appellant stated that his diabetes became present during his service. The appellant's private treatment records show that he has been diagnosed with diabetes mellitus since at least 2014, and that he has changed his diet and exercise to help control this. The appellant's service treatment records show no diagnoses of diabetes mellitus or other findings related to a blood sugar disorder. Based on the lack of any probative evidence indicating that diabetes mellitus began during a period of ACDUTRA or that it is related to any event or injury in service, the Board is unable to grant service connection for diabetes mellitus. The appellant has not provided any other information or evidence indicating that his diabetes mellitus began in service, other than his vague assertion that he believes it began while he was in service. There are no probative medical opinions linking his diabetes to service, and no medical evidence showing a diagnosis of diabetes until 35 years after the appellant's period of ACDUTRA. In light of this evidence, the Board finds that the service treatment records outweigh the appellant's assertions, which are not found to be credible. See, e.g., Kahana, 24 Vet. App. 428. The Board again acknowledges that the appellant was not afforded a VA examination for diabetes mellitus. While the appellant does have a current diabetes disability, , there is no evidence indicating that any event, injury, or disease occurred in service which could be related to diabetes mellitus, and the Board does not find that the duty to afford the appellant a VA examination has been triggered. McLendon, 20 Vet. App. at 81. There is absolutely no evidence of record which indicates any causal connection between the appellant's diabetes and service, and the service treatment records, and other evidence of record does not indicate that the appellant was diagnosed with diabetes mellitus during his period of ACDUTRA. The weight of the evidence of record therefore preponderates against finding that diabetes mellitus began during any period of ACDUTRA or is related in any way to service. The claim is denied. The Board has again considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b). REASONS FOR REMAND Left Ankle Disability and Right Ankle or Foot Disability The appellant contends that he has a left ankle disability and a right ankle or foot disability, and that these disorders first began during active duty training or are related to an injury during training. The appellant testified at the July 2020 Board hearing that he injured his right ankle at the same time that he injured his back when he tripped in a ditch during training. He stated that he sprained his left ankle in service and did receive treatment for it. He said that he now receives treatment for pains in both legs and ankles. The appellant's service treatment records show that the appellant noted a fractured foot on his August 1978 Report of Medical History at entrance into service. The physician wrote that there was a fracture of foot bone in 1978. In September 1978, the appellant reported arch pain in the sole of his right foot for 3 days. That same month, he reported intermittent swelling in his foot. In December 1978, he was seen for soreness over the tendon of his left foot and ankle pain. Following the appellant's 3-month period of active duty service, he served in the Army Reserve. His Reserve records show that in April 1980, the appellant stepped in a hole and wristed his foot. He was diagnosed with sprained ankle and inversion. A follow-up in May found that the swelling was down, and the appellant was doing well on crutches. An April 1980 Statement of Medical Examination and Duty Status found that the appellant was walking in the bivouac area in April 1980 when he stepped into a muddy ditch and aggravated an already weak ankle, with a history of previous ankle injury. He was diagnosed with inversion sprain left ankle, and it was found to be incurred in the line of duty. The appellant attended a VA examination in February 2014. The appellant reported that he developed foot injuries because of physician training in 1978, and that he was found to have a fracture of the metatarsals during that time and had to wear a cast for 1 month. The examiner diagnosed the appellant with chronic mild residual foot sprain and fracture of the metatarsal bones (resolved), with a normal foot examination at present. The examiner found that the ankle examination was normal and there was no ankle dysfunction. An addendum medical opinion was obtained in May 2014. The examiner wrote that the appellant had a normal examination of the ankles. He noted that the appellant did not report current pain in his right foot. He wrote that the appellant's right foot condition was at least as likely as not caused by or a result of injury during service, but the condition was now resolved, and there were no symptoms or dysfunction. The appellant's claims were denied on the basis that he did not have a current disability. The appellant has, however, testified that he does have pain in his feet and ankles, and the Board finds that this should be reevaluated in light of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that where pain alone result in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Board requests that a VA examiner evaluate the impact, or lack thereof, from pain, focusing on the evidence of functional limitation caused by pain, and if it limited the ability to perform normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. A nexus opinion should then be provided. The appellant has also testified that he currently receives private treatment for his ankles and feet, but these records have not been obtained. The appellant should be afforded another opportunity to provide such records. Right Shoulder Disability At the July 2020 Board hearing, the appellant stated that he injured his shoulder in service, and then injured it again at work in 2005. He stated that he was lifting a sack of potatoes during active duty service, and the joint came out of his shoulder. He said that he did receive treatment and was put on light duty. The appellant's service treatment records do not show any treatment for an injury to the right shoulder, although he did report bilateral shoulder pain during Reserve service treatment for an upper respiratory infection in August 1979. The Board accepts that the appellant is competent to state that he injured his shoulder in service and was placed on light duty for that injury. Because he is asserting a continuity of symptomatology for his right shoulder since that time, the Board finds that the duty to afford the appellant a VA examination has been triggered, and the issue should be remanded so that the appellant can attend such an examination. McLendon, 20 Vet. App. 79. The matters are REMANDED for the following action: 1. Request that the appellant submit a completed release form (VA Form 21-4142) authorizing VA to secure any additional relevant private treatment records relating to the feet or ankles, including any records from Penn Medical Center and Jefferson University Hospital. The appellant should be advised that he can also submit those records himself. If he provides a completed release form, then request the identified treatment records. At least two efforts should be made to obtain these records, and the appellant and his representative should be notified of any unsuccessful efforts. 2. Schedule the appellant for an examination to address the nature and etiology of any left or right ankle, right foot, or right shoulder disorder. The examiner must be provided access to the appellant's entire claims file and must specify in the report that the claims file has been reviewed. The examiner should then address: a) What are the appellant's current diagnoses relating to his right and left ankles and feet? b) If no specific diagnosis is found, please discuss the functional impact of the appellant's reported pain in his ankles and feet. Discuss the impact, or lack thereof, from pain, focusing on the evidence of functional limitation caused by pain, and if it limits the ability to perform normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. See Saunders, 886 F.3d 1356. c) For all ankle and foot disorders found, including any functional impairment from pain, is it as likely as not that the disorder had its onset during service or is related to any injury or incident in service? Please consider i) the September 1978 treatment for right foot arch pain and subsequent report of swelling in his foot, ii) December 1978 treatment for soreness over the tendon of his left foot and ankle pain, and iii) his April 1980 left ankle sprain and inversion treatment, which was determined to be in the line of duty during Reserve reservice. d) What are the appellant's current diagnoses relating to the right shoulder? e) For all right shoulder disorders found, is it as likely as not that the disorder had its onset during service or is related to any injury or incident in service, including the appellant's reports of injuring his shoulder while lifting a sack of potatoes and the August 1979 report of shoulder pain. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must explain why. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.