Citation Nr: 21042633 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-01 644 DATE: July 13, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's back disability, bilateral knee disorders or bilateral ankle disabilities, had onset in service, arthritis did not manifest to a compensable degree within one year of discharge from active duty service, and the currently diagnosed back disability, bilateral knee disorders and bilateral ankle disabilities, initially noted many years after service, are not shown to be causally or etiologically related to any disease, injury, or incident during active duty service. 2. The preponderance of the evidence is against finding that hypertension or OSA began during active service or for many years thereafter, hypertension did not manifest within one year of discharge from active duty service, and they are not otherwise shown to be related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 7. The criteria for entitlement to service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1979 to February 1985, with additional service in the National Guard from March 1989 to March 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision. In February 2016 the Veteran testified at a hearing before a Decision Review Officer (DRO). A transcript of the hearing is of record. In February 2019, the Board remanded the appeal for additional development, which has been completed. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. §§ 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here the service records for the Veteran's active duty service from August 1979 to February 1985 are missing; thus, the obligation to explain findings and conclusions and to carefully consider the benefit-of-the-doubt rule is heightened. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). But this does not lower threshold for an allowance of a claim. In other words, the legal standard for proving a claim is not lowered; rather, the obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). 1. Entitlement to service connection for a back disability 2. Entitlement to service connection for a left knee disability 3. Entitlement to service connection for a right knee disability 4. Entitlement to service connection for a left ankle disability 5. Entitlement to service connection for a right ankle disability The Veteran seeks service connection for a back disability, bilateral knee and bilateral ankle disorders, to include as residuals of injuries incurred during active duty service from August 1979 to February 1985. At a February 2016 DRO hearing, the Veteran stated that he fell off of a deuce and a half truck during service, injuring his back sometime in 1980 or 1981 while stationed in Germany. Reportedly, he was given a profile and treated with physical therapy and chiropractic treatment. The Veteran testified to not reporting the back injury on separation from service because he was ready to go home. He further stated that he complained of back pain during National Guard training and was treated by military doctors. Concerning the knees, the Veteran testified that he injured his knees during active service, but he did not specifically remember how and when the injury occurred. The Veteran testified to remembering that he was put on light duty and issued crutches but did not mention the knee injuries on separation from service because he was ready to go home. The Veteran also did not mention knee pain or injury during reserve service to his superiors but asserts that he did mention pain to some sergeants. Pertaining to the ankle, the Veteran testified that he injured his left ankle running during physical training in active service and injured his right ankle stepping into a pothole while running. The Veteran testified that he did not remember the exact year. He was given a light duty profile for four weeks and given crutches. The Veteran also reported at his October 2019 VA examination that he injured his back, knees and ankles in 1983 when he fell off of a 2.5 ton truck while stationed in Germany. The competent evidence of record confirms that the Veteran has been diagnosed with a back disability, bilateral ankle sprains and bilateral knee disabilities, to include ostearthritis affecting both knees. There is no evidence contemporaneous with the Veteran's active duty service from August 1979 to February 1985 showing any complaints, history or findings consistent with a back disability, bilateral ankle disorders or bilateral knee disabilities, nor were any injuries recorded. The National Guard records contain a February 1989 medical pre-screening report, wherein the Veteran denied back trouble or painful joints. In a report of medical history also dated February 1989, the Veteran again denied a history of recurrent back pain, as well as a history of trick or locked knee, or foot trouble. On examination, the Veteran's feet, lower extremities and spine were clinically evaluated as normal. In July 2008 the Veteran complained of pain and swelling in the right knee and ankle of one month's duration after he twisted his knee when he stepped off a forklift. The assessment was knee strain. Bilateral knee osteoarthritis was noted in 2019. In June 2013 the Veteran related a history of back pain for 30 years. In March 2015, he reported chronic back pain from a service-related injury. A January 2017 VA MRI revealed moderate disc bulges at L3-4, L4-5 and L5-S1, with possible borderline spinal stenosis at these levels. Following a review of the medical evidence, the Board finds that arthritis of the back, knees or ankles was not shown in service or within one year following discharge from active duty service in 1985. As such, service connection cannot be established for arthritis on a presumptive basis. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Board notes that the first documented evidence of ankle, back, or knee complaints was initially noted more than 17 years after the Veteran's discharge from active duty service. In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well. See Buchanan v. Nicholson, 451 F.3d at1335. To the extent the Veteran asserted continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the available service treatment records. Thus, the Veteran did not adequately show that his post-service complaints of back, knee or ankle symptoms continued since service. In light of the missing records, assuming, without conceding, for discussion purposes that the credibility of the Veteran's account of back, ankle and knee injuries during active duty service more than 35 years ago, the record is insufficient to link his current back, bilateral knee and bilateral ankle disorders to the alleged injuries, or to any other aspect of his service. Simply stated, the fact that he may have incurred injuries in service, does not necessarily lead to the conclusion that his current problems, decades later, are related to those injuries. On the question of a nexus between the current back disability, bilateral knee disorders and bilateral ankle disabilities, and service, the evidence is against the claims. On VA examination in October 2019, the Veteran reported injuring his back, knees and ankles in 1983 when he fell off of a 2.5 ton truck in Germany. He developed back, knee and ankle pain and could barely walk. Despite multiple physical therapy sessions there was no improvement and the back symptoms continued to progress over time. Similarly, the knee and ankle symptoms worsened with time and he now experienced pain and stiffness which interfered with his ability to drive long distances. The examiner noted that treatment records initially documented complaints of knee and ankle problems many years after discharge from the National Guard. The examiner diagnosed degenerative changes of the spine, bilateral knee strain and bilateral ankle strain, and opined that the claimed disorders were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that a review of the available service records from 1989 to 1993 failed to document any findings consistent with a spine, knee or ankle disability during his National Guard service, including during any drill /MUTA status. While the active duty service records were unavailable, a chronic condition, such as a chronic back, knee or ankle disability, would have been discussed on reserve readiness heath assessment or in private medical appointments while at the National Guard, and no such disabilities related injuries or associated symptoms were recorded at that time. The Board finds the opinion of the VA examiner in October 2019 to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran incurred the current back, bilateral knee or ankle disorders in service. The examiner's findings were based on a review of the evidence, including the service treatment records and examination, which did not substantiate a finding that the Veteran sustained a chronic back, bilateral knee or bilateral ankle disabilities during active duty service. The examiner considered the complete record and the Veteran's contentions and provided an explanation as to why the evidence does not support a finding that his back disorder, bilateral knee disabilities and bilateral ankle strains, were due to service, to include injuries incurred therein. Finally, the VA examiner's opinion was internally consistent and consistent with other evidence of record and is of significant probative value. Accordingly, the VA examiner's opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Significantly, there is no competent medical opinion of record linking the current back disability, bilateral knee disorders or bilateral ankle strains to service. To the extent that clinicians after 2013 noted a history of back problems since an in-service injury, a bare transcription of lay history is not transformed into competent medical evidence simply because it was transcribed by a medical professional, whether that professional is a VA or private physician. LeShore v. Brown, 8 Vet. App. 406 (1995). Again, the Board finds the opinion of the VA examiner, who considered the Veteran's in-service and post-service history and provided adequate rationale, to be more probative than medical statements based on the Veteran's recitation of a history of problems originating in service. The Board has considered the statements from the Veteran asserting that his back, knee and ankle problems are due to service. The Veteran is certainly competent to report as to the observable symptoms he experienced, but he cannot diagnose himself because of the medically complex nature of such a diagnosis. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan, 451 F.3d at 1336; See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to any injuries incurred therein is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). The Board finds that the specific, reasoned opinion of the VA examiner of greater probative weight than the more general lay assertions in this regard. The examiner has training, knowledge, and expertise on which he relied to form the opinion, and the examiner provided rationale for the conclusions reached. As noted, there is no competent medical evidence that supports the claims. Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against the claims, indicating a problem with the back, knees and ankles that began decades after service with no connection to service. In summary, there is no competent evidence of arthritis of the lumbar spine, knees or ankles, or any other disorder in service or within one year following discharge from service. Thus, the provisions regarding continuity of symptomatology are not applicable. See Walker, 708 F.3d at 1340. Moreover, the most probative and persuasive evidence is against a finding that his current back disability, bilateral knee disorders and bilateral ankle strains are related to service. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims. As such, that doctrine is not applicable in the instant appeal, and the claims must be denied. See 38 U.S.C. § 5107(b). 6. Entitlement to service connection for hypertension The Veteran contends that he is entitled to service connection for hypertension. He claims that he had elevated blood pressure readings during active duty service from August 1979 to February 1985, which he asserts were a manifestation of his currently diagnosed hypertension. The Veteran has also reported that he in fact was diagnosed with hypertension during active duty service and was started on medication at that time. The term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater. The term isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. As an initial matter, the Board finds that the competent evidence of record confirms that the Veteran has hypertension. As noted, the service treatment records for the Veteran's active duty are unavailable. The Veteran's National Guard service records contain a February 1989 report of medical history wherein the Veteran denied a history of high or low blood pressure. Examination recorded a blood pressure reading of 110/74. After service, a diagnosis of hypertension treated with medication was initially recorded after 2002. To the extent the Veteran claims that he had elevated blood pressure readings in service, the Board notes that these are laboratory findings and are not disabilities in and of themselves for which VA compensation benefits are payable. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010). There is no evidence of record showing blood pressure readings that met the criteria for hypertension or isolated systolic hypertension under 38 C.F.R. § 4.104, contemporaneous with active duty service or within one year of discharge. For high blood pressure to exist as a current disability, these provisions must be met. To the extent the Veteran reported that a clinician told him that he had hypertension in during active duty service, a lay person's account of what a physician purportedly said, filtered as it is through a lay person's sensibilities, is not competent medical evidence. There is a possibility that the Veteran may have misremembered, misunderstood, or misrepresented what he was told, particularly in light of the fact that the Veteran denied a history of high blood pressure in February 1989. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Thus, the evidence does not reflect hypertension in service or within one year following discharge from service, or until more than a decade after discharge from active duty service, and service connection on a presumptive basis as a chronic condition is not warranted. 38 C.F.R. §§ 3.307, 3.309. To the extent the Veteran is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the service treatment records. Thus, the Veteran has not adequately shown that his hypertension had onset in service and continued since service. Accordingly, the question in this case becomes whether the current hypertension is etiologically related to service. On this question, the preponderance of the evidence is against the claim. On VA examination in October 2019, the Veteran reported that in 1983 he started having headaches and feeling dizzy. He also developed blurred vision and nosebleeds. Reportedly, he went to his provider and was told that he had hypertension and was started on medication. The examiner noted that private treatment records in August 2002 recorded a diagnosis of hypertension. The examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by service. The examiner explained that a review of the available service records and noted that his National Guard service records from 1989 to 1993 failed to document any findings consistent with hypertension during any drill or MUTA status. The post-service medical evidence initially noted hypertension treated with medication in 2002. While the active duty service records were unavailable, a chronic condition, such as hypertension, would have been discussed on reserve readiness heath assessment or in private medical appointments while at the National Guard. While the Veteran was treated for hypertension the treatment started nine years after his National Guard service. Therefore, it was less likely than not the Veteran incurred a hypertension condition during service. The Board finds the opinion of the VA examiner in to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran incurred hypertension during his active duty service. The Board finds the report to be adequate: The examiner's findings were based on a review of the evidence, including the available service records and post-service treatment records, which did not substantiate a finding of hypertension until more than a decade after service. The examiner considered the complete record and the Veteran's contentions, and provided an explanation as to why the evidence does not support his contentions. Additionally, the VA examiner provided reasoning that is supported by the record. Finally, the opinion is consistent with other evidence of record and is of significant probative value. Nieves-Rodriguez, 22 Vet. App. at 304. Significantly, there is no competent medical opinion of record linking hypertension with service. While as a lay person the Veteran is competent to relate treatment or some symptoms that may be associated with high blood pressure, such as some dizziness and lightheadedness, under the facts of this case any actual diagnosis of a disability caused by or stemming from elevated blood pressure readings requires objective testing to diagnose and can have many causes. See Jandreau, 492 F.3d at 1377, n. 4. To the extent that the Veteran believes that he has hypertension that is due to service, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran's opinion as to the etiology of his current hypertension is not competent evidence, as the nexus question involved in this case requires medical expertise to determine. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current claimed disorders, is a matter that requires medical expertise to determine. See Clyburn, 12 Vet. App. at 301. Simply stated, both the best medical evidence in this case and the facts of this case provide highly probative evidence against the claim. As the preponderance of the evidence is against the claim, the claim for service connection for hypertension is denied. See 38 U.S.C. § 5107. 7. Entitlement to service connection for OSA The Veteran seeks service connection for OSA. At the DRO hearing in February 2016, the Veteran testified that during active duty he developed bad sleeping habits and often woke throughout the night. He also attributed his OSA to a fractured nose incurred in a fight while stationed in Germany. Here, there is no evidence contemporaneous with service showing complaints or findings consistent with impaired sleep or a diagnosis of OSA. In fact, in a report of medical history in February 1989, the Veteran denied a history of frequent trouble sleeping or nose trouble, and his nose was clinically evaluated as normal. After service, the Veteran underwent a sleep study in June 2013, which revealed OSA. The Veteran was subsequently fitted with a continuous positive airway pressure (CPAP) machine. The Board notes that the first documented evidence of OSA is more than two decades after the Veteran's discharge from active duty service. To the extent the Veteran is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the service and post-service treatment records. Thus, the Veteran has not adequately shown that his present complaints of OSA had onset in service and continued since active duty service. Accordingly, competent evidence linking the current claimed disorder to service is needed to substantiate the claim. On VA examination in October 2019, the Veteran reported that he developed difficulty breathing in 1982, particularly at night. He also described night sweats and snoring very loudly. He would wake up restless and short of breath. The symptoms continued for years until he underwent a sleep study in June 2013 and was started on CPAP. Following a review of the claims file and an examination of the Veteran, the examiner opined that the Veteran's OSA was less likely than not incurred in or caused by service. The examiner explained that OSA was a condition of the muscle relaxing in the back of the throat and the tongue causing occlusion of the airway during sleep. The examiner noted that the available service records failed to document any complaints of sleeping difficulties or sleep apnea during any drill /MUTA status. There was no evidence showing a diagnosis of OSA until a sleep study was completed in 2013. Therefore, it was less likely than not the Veteran incurred OSA during service. The Board finds the VA examiner's opinion to be highly probative. The opinion was based on a thorough review of the claims file, including the available service treatment records and examination of the Veteran, and the opinion is consistent with other evidence of record. Moreover, the examiner provided an adequate rationale for the conclusion reached. Accordingly, the VA examiner's opinion is entitled to great probative weight. Significantly, there is no competent medical opinion of record linking OSA to service. The Board has considered the statements from the Veteran asserting that his OSA symptoms started in service with impaired sleep and snoring. He is certainly competent to report as to the observable symptoms, experiences and their history, but the ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Therefore, while the Veteran may have had sleep and snoring problems during active duty service, he is not competent to state that these were symptoms of OSA. The Board finds that the specific, reasoned opinion of the VA examiner is of greater probative weight than the more general lay assertions in this regard. The examiner has training, knowledge, and expertise on which he relied to form the opinion, and the examiner provided a rationale for the conclusion reached. As noted, there is no competent medical evidence that supports the claim. (Continued on the next page) For the reasons set forth above, the Board finds that the most probative evidence weighs against a finding that the Veteran's OSA is related to service. Thus, service connection for OSA is denied. As such, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b). J. Komperda Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.