Citation Nr: 21032520 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 12-34 600 DATE: May 27, 2021 ORDER Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for a cervical spine disability, to include degenerative disc disease and degenerative joint disease, is remanded. Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease and degenerative joint disease, is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A right knee disability was initially manifested during active service. 2. Hypertension was not shown during active service or for many years thereafter and the diagnosed hypertension has not been shown to have originated during active service or be otherwise related to active service. 3. Service connection has been established for a right knee disability, left knee medial tibial plateau tenderness with a history of chondromalacia patella and tricompartment osteoarthritis, right third finger laceration scar residuals, and bilateral hearing loss. 4. The diagnosed hypertension has not been shown to be related to the right knee disability, left knee disability, and the other service connected disabilities or pain associated with those disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1965 to December 1968. The Veteran appeared at both a July 2015 hearing at the St. Petersburg, Florida, Regional Office and a February 2021 virtual hearing before the undersigned Veterans Law Judge. The hearing transcripts are of record. Service Connection Service connection may be established for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established 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). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, and hypertension becomes manifest to a degree of 10 percent within one year of termination of that service, the disease shall be presumed to have been incurred in service even though there is no evidence of that disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established for disability which is proximately due to or the result of a service connected disability. 38 C.F.R. § 3.310(a). Service connection shall be established on a secondary basis where it is demonstrated that a service-connected disability has aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Service connection has been established for left knee medial tibial plateau tenderness with a history of chondromalacia patella and tricompartment osteoarthritis. Right Knee The service medical records show that the Veteran was seen for right knee complaints. A February 1968 treatment entry states that the Veteran complained of right knee pain. He was noted to have a "past X ray report of chondromalacia." A diagnosis of chondromalacia was made. The report of a July 1969 Department of Veterans Affairs (VA) examination shows that the Veteran complained of right knee pain since active service. The Veteran was diagnosed with a "history internal derangement knees." An October 2008 VA right knee magnetic resonance imaging study notes that "patient with original injury when he fell onto a lower deck of an aircraft carrier." The Veteran was diagnosed with right knee "anterior cruciate ligament tear complete or near complete" and tricompartmental degenerative changes. A June 2015 written statement from A. Capasso, M.D., reports that the Veteran presented a history of right knee pain of 40 years' duration. The Veteran was diagnosed with post-operative right knee anterior cruciate ligament tear residuals and medial and patellofemoral osteoarthritis. The doctor concluded that the Veteran's "right knee pain is related to compensating for a left knee injury suffered while in the military." The Veteran was diagnosed with right knee chondromalacia during active service. He has been diagnosed with post-operative right knee anterior cruciate ligament tear residuals and medial and patellofemoral osteoarthritis by VA and private physicians following active service. A physician has attributed the diagnosed right knee disability to active service and to a service-connected left knee disability. Therefore, the Board finds the evidence is in at least equipoise as to whether the diagnosed right knee disability is related to active service or a service-connected left knee disability. Resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for a right knee disability is warranted as incurred during service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Hypertension The Veteran contends that service connection for hypertension is warranted as the claimed disability was incurred secondary to the service-connected knee disabilities and the pain associated with those disabilities. The service medical records do not refer to hypertension. The report of a December 1968 physical examination for service separation states that the Veteran exhibited a blood pressure reading of 110/80. Clinical documentation from Dr. Capasso dated in October 2007 states that the Veteran was diagnosed with hypertension. In an October 2008 written statement, the Veteran asserted that "I also believe that my high blood pressure is aggravated and enhanced by the constant pain and getting worse." At the July 2015 Board hearing, the Veteran testified that he was initially diagnosed with hypertension by Dr. Capasso. In an undated notice of disagreement received in June 2010, the Veteran stated that "if you walked around in constant pain, I believe you would also experience some form of hypertension" and "these are things that are happening to me based on the constant pain I experience from simply standing up too long or even sitting too long in one position." In a March 2017 written statement, the Veteran stated that "I believe my high blood pressure is caused by that pain" and "had I not had the pain, I would not have high blood pressure." The report of a March 2017 VA hypertension examination states that the Veteran reported having been initially diagnosed with hypertension in approximately 2002. The Veteran was diagnosed with hypertension. The examiner commented that a "review of records is completely silent for hypertension in service or in any close proximity to service" and "a medical nexus cannot be made." An August 2018 addendum to the March 2017 VA examination report clarifies that: "it is less likely as not that hypertension is due to the service connected left knee, right third finger scar, and hearing loss disabilities;" "there is no epidemiologic evidence in support of such causal relation;" and "there is no objective evidence that the left knee condition, right third finger scar, or hearing loss has permanently aggravated the hypertension beyond the natural progression of the condition." At the February 2021 Board hearing, the Veteran testified that he believed that the diagnosed hypertension was caused by or aggravated by the pain associated with the service-connected disabilities. Hypertension was not shown during active service or for many years after service separation. The record shows that the Veteran was initially diagnosed with hypertension in 2007, many years after separation from service. The Veteran asserts that the diagnosed hypertension was incurred secondary to the service-connected disabilities and the pain associated with those disabilities. No competent medical professional has concluded that hypertension was manifested secondary to or aggravated by the service-connected disabilities or the pain associated with the service-connected disabilities. The March 2017 VA examination report and the August 2018 addendum state that the examiner expressly negated the existence of such a relationship. The Veteran's claim is supported solely by his own testimony and statements on appeal. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds that the Veteran's lay statements and testimony do not constitute competent evidence to establish a relationship between the diagnosed hypertension and the service connected disabilities. The Veteran has not offered any medical qualifications. The Veteran is not competent to diagnose hypertension or to offer an opinion regarding the relationship between hypertension and service-connected disabilities. The question of such a relationship requires medical training and is too complex to be addressed by a layperson. The Veteran has not submitted any competent evidence relating hypertension to active service or the service-connected disabilities. Hypertension was not manifested during active service or for many years thereafter. The disability has not been shown to have originated during active service; to have been manifested to a compensable degree within one year following separation from service; to be proximately due to or the result of a service-connected disability; or to have been aggravated by a service-connected disability. Accordingly, the Board finds the preponderance of the evidence is against the claim for service connection for hypertension and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability, a lumbar spine disability, a right hip disability, a left hip disability, a right ankle disability, and a left ankle disability is remanded. The Veteran asserts that service connection for a cervical spine disability, a lumbar spine disability a right hip disability, a left hip disability, a right ankle disability, and a left ankle disability is warranted as the claimed disabilities were incurred secondary to an abnormal gait associated with service-connected knee disabilities. Service connection has now been established for a right knee disability. The Veteran has not been provided a VA examination which addresses any relationship between the service-connected right knee disability and the claimed spine, hip, and ankle disabilities. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to a rating in excess of 10 percent for a left disability is remanded. At the February 2021 Board hearing, the Veteran testified that a service-connected left knee disability had increased in severity and necessitated his retirement. The Veteran was last provided a VA examination which addressed the left knee in March 2017. Because of the Veteran's testimony as to the worsening of the service-connected left knee disability and the passage of over four years since the last VA knee examination, the Board finds that further VA evaluation is needed. Clinical documentation dated after January 2019 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 3. Entitlement to TDIU is remanded. Entitlement to TDIU requires an accurate assessment of the impairment associated with all of the service connected disabilities. Because the claim for TDIU is inextricably intertwined with the other claims being remanded, the issue of entitlement to TDIU must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who treated him for any cervical spine, lumbar spine, hip, and ankle disabilities and the service connected left knee disability. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Associate with the record any VA medical records for treatment provided since January 2019 not already of record. 3. Schedule the Veteran for a VA spine examination to assist in determining the nature and etiology of any identified cervical and lumbar spine disabilities and any relationship to active service or the service-connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all cervical spine and lumbosacral spine disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified cervical and lumbar spine disabilities had their onset during active service or are related to any incident of service, including the Veteran's subjective history of having fallen from the deck of an aircraft carrier. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any cervical or lumbar spine disabilities are due to the right knee, left knee, and other service-connected disabilities or pain or altered gait associated with those disabilities. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any cervical or lumbar spine disabilities have been aggravated (increased in severity beyond the natural progress of the disorder) due to the right knee, left knee, and other service-connected disabilities or pain or altered gait associated with those disabilities. 4. Schedule the Veteran for a VA examination to assist in determining the nature of any identified right hip, left hip, right ankle, and left ankle disabilities and any relationship to active service or the service-connected disabilities and the current severity of the service connected left knee disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all hip and ankle disabilities found. If no ankle disabilities are identified, the examiner should specifically state that fact. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified hip and ankle disabilities had their onset during active service or are related to any incident of service, including the Veteran's subjective history of having fallen from the deck of an aircraft carrier. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any hip and ankle disabilities are due to or the result of the right knee, left knee, and other service-connected disabilities or pain or altered gait associated with those disabilities. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any hip disability or ankle disability has been aggravated (increased in severity beyond the natural progress of the disorder) due to the right knee, left knee, and other service-connected disabilities or pain or altered gait associated with those disabilities. (e) Provide ranges of motion for weight-bearing and nonweight-bearing and passive and active motion of the knees. The examiner should state whether there is any additional loss of left knee function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (f) State whether there is any recurrent subluxation or lateral instability of the left knee, and if so, opine as to the severity. (g) Specifically address the impact of the left knee disability on the Veteran's vocational pursuits and whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the combined effects of the service connected disabilities. If the Veteran is felt capable of work despite the service connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Hutcheson, 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.