Citation Nr: 21041535 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-40 697A DATE: July 9, 2021 ORDER Entitlement to service connection for right elbow arthritis is denied. Entitlement to service connection for left elbow arthritis is denied. Entitlement to service connection for right knee arthritis is denied. Entitlement to service connection for left knee arthritis is denied. Entitlement to service connection for traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that osteoarthritis of the right elbow began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that osteoarthritis of the left elbow began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that osteoarthritis of the right knee began during active service or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that osteoarthritis of the left knee began during active service or is otherwise related to an in-service injury or disease. 5. The preponderance of evidence weighs against a diagnosis of TBI or residuals thereof. CONCLUSIONS OF LAW 1. The criteria for service connection for osteoarthritis of the right elbow are not met. 38 U.S.C. §§ 1110, 1131, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for osteoarthritis of the left elbow are not met. 38 U.S.C. §§ 1110, 1131, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection for osteoarthritis of the right knee are not met. 38 U.S.C. §§ 1110, 1131, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 4. The criteria for service connection for osteoarthritis of the left knee are not met. 38 U.S.C. §§ 1110, 1131, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 5. The criteria for service connection for a TBI or residuals thereof are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to July 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2015 and December 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2018, at which time the issues on appeal were remanded for additional development; namely to obtain outstanding treatment records and to schedule the Veteran for VA examinations. The Agency of Original Jurisdiction (AOJ) has substantially complied with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). I. Pertinent Law and Regulations As noted, this matter was remanded in December 2018, in part, to afford the Veteran VA examinations. The Board explained in the December 2018 remand that additional medical evidence was needed to determine the nature and etiology of the disabilities being claimed. In October 2019, the AOJ notified the Veteran that it had requested an examination through a private provider and that he would be notified from the provider as to the date and place of the examination(s). The AOJ also notified the Veteran that if, without good cause, he failed to report for an examination or reexamination, the claim shall be rated based on the evidence of record, or even denied. Thereafter, in December 2019, the Veteran informed VA that he was tired and he was not interested in attending anymore examinations. However, a deferred rating decision the following day shows that the Veteran contacted VA and stated that he wished to be scheduled for examinations for his TBI, sleep apnea, hypertension, and heart disability claims. Records show that he was subsequently scheduled for new examinations, but he cancelled the examinations in January 2020 and he did not ask that they be rescheduled. Accordingly, the Board will decide these claims based on the evidence presently of record. 38 C.F.R. § 3.655. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As arthritis is a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). II. Analysis 1. Right and Left Elbow and Knee Disabilities Service treatment records show that the Veteran had a normal clinical evaluation of his upper and lower extremities at his enlistment examination in August 1972, and he did not report having a history of swollen or painful joints on an August 1972 Report of Medical History. He thereafter reported having swollen and painful joints on a February 1975 Report of Medical History. He said that he had "knee cramps" on a November 1992 Report of Medical History. He reported on a March 1993 Report of Medical History that he had pain in various joints, to include his arms and knees, over the past couple of years which were worsening, but he denied a history of arthritis. He is shown to have a normal clinical evaluation of his upper and lower extremities at his March 1993 retirement examination. Shortly after service, in September 1993, the Veteran underwent a VA general examination. He reported experiencing a snapping and popping sensation in his spine and various joints including his knees. He did not specifically report elbow problems. Findings regarding his upper and lower extremities revealed no effusions, ligamentous instabilities, swellings, or tenderness. There was also no evidence of subluxation or of unusual snapping. The first post-service notation in the record of knee problems is many years after service. In this regard, the Veteran complained at an October 2012 VA general examination of pain in his left knee as well as his right ankle. He also reported that his left knee sometimes gave way. He denied that the pain migrated to other joints. An October 2015 VA knee and leg examination report contains the Veteran's report of having knee pain for over 10 years. This report also shows that he denied a history of a specific injury, but he said that he fell while he was in Saudi Arabia and he denied seeking medical treatment at that time. This report notes that he had joint osteoarthritis of the right and left knees diagnosed in 2012. This report also notes that imaging had been performed, but that there were no imaging reports on file with respect to the Veteran's knees. Also in October 2015, the Veteran underwent a VA elbow and forearm examination where he reported a 25 history of elbow pain due to carrying heavy rucksacks in service. He was noted to have osteoarthritis of the right and left elbows diagnosed in 2012. This report similarly notes that imaging was performed, but that there were no imaging reports on file with respect to the Veteran's elbows. There is also a VA Persian Gulf examination report in October 2015 which notes under the remarks/allegation section that the Veteran had degenerative joint disease of the elbows and knees. Considering the vague nature of the Veteran's complaints of joint pain on the Report of Medical History at separation in March 1993 with no record of in-service treatment for the elbows and knees, and the lack of documented complaints or treatment regarding the elbows and knees for years after service, the weight of evidence does not support service connection under 38 C.F.R. § 3.303(a) or (b). See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). While consideration has been given to the Veteran's assertion in the December 2015 notice of disagreement that he self-treated these conditions, consideration has also been given to the fact that the VA orthopedic examination in September 1993 showed unremarkable findings with respect to the upper and lower extremities. Moreover, the Veteran did not include these disabilities in his July 2011 claim despite claiming service connection for other orthopedic disabilities. In addition, the provisions for service connection for certain chronic disabilities, to include arthritis, do not apply since the Veteran is not shown to have had osteoarthritis of the elbows or knees in service or within one year of service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. As far as establishing service connection based on nexus evidence pursuant to 38 C.F.R. section 3.303(d), the evidence is against the Veteran's claim. Regarding the Veteran's right and left elbows, the VA examiner in November 2019 opined that the Veteran's right and left elbow arthritis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. He said that there was no objective evidence of a chronic elbow condition on or after active duty. He pointed out that the service separation examination report (Report of Medical History) made specific reference to the Veteran's shoulder pain only (in the remarks section). He similarly reported that the examination reports (Reports of Medical History) in September 1988 and March 1993 with respect to the arm and shoulder only provide detail regarding the shoulder. He also reported that post service treatment records do not document chronicity of care or elbow complaints. He added that he was unable to find the 2012 x-ray showing arthritis as referenced in the October 2015 examination report, but that even if elbow DJD is shown (by x-ray), no nexus to active duty exists as no elbow condition was chronic on active duty. He concluded by opining that a nexus has not been established. With respect to right and left knee arthritis, the November 2019 VA examiner opined that the Veteran's right and left knee arthritis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. He explained that other than references on the 1992 and 1993 examination reports, there is no objective evidence of a chronic orthopedic knee condition on active duty or after until complaints on the 2015 DBQ (Disability Benefits Questionnaire). He said that he was unable to find in the available records the 2012 x-ray showing arthritis and that the only reference to knee is the June 2015 report by the Veteran is that his "knee gave out", with no other entry and no knee issue on problem list. He went to state that regardless, even if knee degenerative joint disease (DJD) is shown (by x-ray), no nexus to active duty exists as no knee condition was chronic on active duty or after. He concluded by opining that a nexus has not been established There is also an opinion addressing the Veteran's assertion that his DJD is related to toxin exposure in service. In this regard, the VA examiner in October 2015 opined that the musculoskeletal conditions, to include the elbows and knees, are concrete, physical diseases caused by direct mechanical forces at work on the joints, and are less likely to be due to an environmental exposure in Southwest Asia. The October 2015 VA examiner's opinion is afforded considerable probative weight since he based his opinion on his review of the Veteran's claims file and he provided sound reasoning for his opinion based on the specific facts of the Veteran's case. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302-04 (2008). Moreover there is no contrary medical opinion on file. Thus, for the foregoing reasons, the Board concludes that the preponderance of the evidence is against the claims of entitlement to service connection for arthritis of the right and left elbows and knees. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt rule does not apply and the appeal is denied. 38 U.S.C. § 5107. 2. TBI This matter stems from the Veteran's May 2015 claim for service connection for a TBI and residuals thereof, namely, memory loss. He asserts that he sustained a concussion prior to service at age 10 years when he was hit in the head by a baseball bat. He also asserts that he had two head injuries in service which aggravated the condition. In this regard, he relayed to a VA examiner in October 2015 that he fell out of a convoy truck and hit the left front of his head. He denied receiving medical treatment for this. He also relayed that he sustained a concussion at Fort Riley. The Veteran's service treatment records show that he had a normal clinical evaluation at his August 1972 entry examination to include of the head as well as neurologic and psychiatric. He denied a history of head injury on an August 1972 Report of Medical History. On a subsequent Report of Medical History in February 1975, he reported a history of a head injury. A skull x-ray report in October 1980 shows that the x-rays were taken for headache complaints. This report shows that the Veteran reported sustaining a blow to the head "some time ago". On a September 1988 Report of Medical History the Veteran reported that he was hit in the head "years ago". He denied pain, but he said that he had two bumps on his forehead and that whenever he gets hit in the forehead or bumps into something he gets a headache. The earliest post-service medical documentation of a TBI is the October 2015 VA TBI examination report. The examiner diagnosed the Veteran as having a TBI and he said that the Veteran "appears" to have residuals, but that it was not possible to separate out from the prior TBI before service and the two incidents during service with no supporting documentation. He also noted that the Veteran had recently been diagnosed as having dementia and was taking Donepezil. In rendering a nexus opinion, the examiner noted that records indicate head trauma twice during service and a prior TBI as a child. He said that a current computed tomography report supports brain changes consistent with vascular disease and possible alcohol related brain changes. He also said that current testing does not support a more precipitous decline in mental status to support an aggravation after mild head trauma with no supporting documentation. Later, during a PTSD VA examination in October 2016, the examiner reported that no formal testing for TBI had been performed and that a TBI was not shown in the Veteran's medical records. He went on to state that it needed to be ruled out. An essential element in any service connection claim is evidence of a present disability. Holton, supra; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, the Board finds after reviewing the pertinent evidence in this matter that a TBI diagnosis has not been adequately established. Although the October 2015 VA examiner diagnosed the Veteran as having TBI, he also stated that there was no supporting documentation. He thus appears to have based his opinion on records containing the Veteran's reports of head trauma. A transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 206 (1995). Also, the examiner's report that the Veteran "appears to have residuals" is speculative. See Bloom v. West, 12 Vet. App. 185 (1999) (holding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Moreover, the examiner went on to state that current computed tomography supports brain changes were consistent with vascular disease and possible alcohol related brain changes, and that current testing does not support a more precipitous decline in mental status to support an aggravation after mild head trauma with no supporting documentation. The Board's finding that an adequate TBI diagnosis has not been established is consistent with the October 2016 VA PTSD examiner's report that no formal testing for a TBI had been conducted and that such testing should be conducted to rule it out. Unfortunately, as noted, the Veteran cancelled a scheduled TBI examination in January 2020, and he did not request that it be rescheduled. Information from the examination could have been beneficial to his claim. In short, the evidence currently of record is insufficient to establish that the Veteran has a TBI or residuals thereof. Holton, supra. To the extent that the Veteran asserts that he has a TBI that is at the very least aggravated by service, he is not competent to render such an opinion as this particular matter is complex in nature and requires an opinion from someone who has specialized medical knowledge, training, or experience which the Veteran has not been shown to have. See Woehlaert v. Nicholson, 21Vet. App. at 456, 462 (2007); Jones v. West, 12 Vet. App. 460, 465 (1999). Accordingly, the Board affords the Veteran's statements in this regard of little to no probative weight. Where, as here, the probative evidence does not establish a current diagnosis of TBI or TBI residuals during the appeal period, the claim for service connection must be denied. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). As the preponderance of evidence is against the Veteran's claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran's service treatment records show that he had fluctuating blood pressure readings in service and was assessed by a VA examiner shortly after service in September 1993 as having labile blood pressure without sustained hypertension or end organ damage. Treatment records dated years later reflect diagnoses of essential hypertension. In December 2018, the Board remanded the matter to the AOJ to afford the Veteran a VA examination to obtain a medical opinion on whether the Veteran's labile blood pressure is related to his present diagnosis of essential hypertension. The record shows that the AOJ complied with the Board's directive by scheduling the Veteran for a VA examination, but that the Veteran cancelled the examination in January 2020 and did not request that it be rescheduled. While noting that the duty to assist is not a one-way street and that a Veteran has a duty to assist and cooperate with VA in developing evidence, see Wood v. Derwinski, 1Vet. App.190 (1991), the Board also notes that a fully informed decision can be made in this matter by obtaining an addendum medical nexus opinion based on a review of the Veteran's claims file. Thus, to afford the Veteran every possible consideration in this appeal, this matter must be remanded to obtain an addendum medical opinion consistent with the directives of this remand. The issue of entitlement to a heart disability, to include coronary artery disease and quadruple bypass surgery is inextricably intertwined with the issue of service connection for hypertension and must be deferred pending resolution of the latter claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In this regard, if a link is established between the Veteran's essential hypertension and service, an opinion should be obtained regarding whether it is at least as likely as not that the Veteran's heart disability is proximately related to, caused, or aggravated by his hypertension. 38 C.F.R. § 3.310. Similarly, an addendum opinion should be obtained regarding the likelihood of a nexus between the Veteran's post-service diagnosis of sleep apnea. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. In this regard, the Veteran asserted in a December 2014 statement that his sleep problems began after his return from Operation Desert Storm and they could be related to his exposure to oil fires and "smoked-filled air". His service treatment records show complaints of sleep trouble, including the March 1993 Report of Medical History. The Veteran was diagnosed post-service as having sleep apnea. See October 2012 Persian Gulf examination report and December 2014 sleep study report. The Veteran also asserted that it took 22 years for the doctors to order a sleep study and to "tie everything together". The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran's current diagnosis of essential hypertension. The physician is asked to opine whether it is at least as likely as not that the Veteran's post-service diagnosis of essential hypertension is causally connected to the fluctuating blood pressures in service and the finding of labile blood pressure at the September 1993 VA examination. A full explanation must be provided for any opinion provided. If the physician opines that it is at least as likely as not that the Veteran's essential hypertension is causally related to his active service, then he should be asked to opine whether is it at least as likely as not that the Veteran's heart disability to include coronary artery disease and status post quadruple coronary artery bypass surgery is proximately due to or the result of his essential hypertension. If the answer is no, then is it at least as likely as not that the Veteran's hypertension worsened his heart disability. 2. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran's obstructive sleep apnea. The physician is asked to opine whether it is at least as likely as not that the Veteran's post-service diagnosis of obstructive sleep apnea is causally related to the Veteran's service, to include his reported exposure to "smoked filled air" from oil fires. 3. Confirm that the opinions provided comport with this remand and undertake any other development found to be warranted. (Continued on the next page) 4. Then, readjudicate the issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shawkey, Anne M. 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.