Citation Nr: 22018678 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-52 501 DATE: March 30, 2022 ORDER Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a right foot disability is remanded. FINDING OF FACT The Veteran's hypertension did not have its onset in active service, nor did it manifest within one year of separation from service. CONCLUSION OF LAW The criteria for service connection for hypertension were not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1153, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3, 309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1981 to August 1992. These matters arose to the Board of Veterans' Appeals (Board) from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2022, the Veteran testified before the undersigned at a virtual Board hearing. A transcript is of record. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2021). With regard to the hypertension claim herein decided, there is no evidence of any error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159. The Board is aware the Veteran was not afforded a VA Compensation and Pension (C&P) examination for his claimed hypertension. However, in the absence of competent evidence indicating this condition was incurred in or are otherwise related to service, no such examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Veteran did not raise any other issues with respect to VA's duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for hypertension The Veteran contends his hypertension developed in service. Service connection may be granted 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(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). At the outset, the Board finds the record demonstrates the Veteran was diagnosed with hypertension during the pendency of his appeal. Thus, the current disability element of his claim is met. See 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a); see also Holton, 557 F.3d at 1366. However, for the following reasons, the Board finds a nexus to service has not been established, and therefore service connection is not warranted. The Veteran's service treatment records do not reveal any evidence of treatment or complaints pertaining to hypertension. Post-service records show the Veteran was diagnosed with hypertension in 2012. On his October 2017 substantive appeal, he asserted he was diagnosed with hypertension while on active duty. In March 2018, the Veteran's representative submitted a brief essentially admitting that there was no evidence of hypertension in service; the brief did not include any positive evidence in support of the claim. After carefully reviewing the record, the Board finds the most persuasive evidence of record is against the Veteran's claim for service connection for hypertension. As noted above, the available medical records show he was not diagnosed with this condition until many decades after his discharge from service. The only positive evidence indicating the claimed disease is related to service are his statements to that effect. The Veteran has alleged (for example, in his substantive appeal) that his hypertension was diagnosed in service. At his hearing he stated he was given high blood pressure medications as well as a diuretic in service, and that the stress of being a young dad while his wife was deployed in Kuwait may have worn him down and resulted in developing high blood pressure. In this regard, the Board acknowledges the Veteran is competent to relate symptoms within the realm of his personal knowledge, just as he is competent to relate what he has been told by a medical professional. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the question of whether his hypertension was caused by or incurred in service is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins). Because the evidence does not indicate the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning the etiology of his claimed hypertension, he is not competent to comment on the matter. Moreover, there is no probative medical evidence suggesting in-service onset or any other causal link between the Veteran's hypertension and his active service. The Board acknowledges the Veteran's contentions that his hypertension was diagnosed in service. However, his service treatment records do not corroborate this contention, and there is no other credible evidence substantiating the claims. The Board reiterates that there is no objective evidence to suggest hypertension was diagnosed in service, nor indeed within multiple decades of his separation from service. Although this does not completely undermine the Veteran's lay contention of in-service diagnosis, it does render that contention much less persuasive. (It is also notable that the Veteran admitted at his Board hearing that he did not remember exactly whether he had high blood pressure in service.) In short, the Board finds the Veteran's lay statements are not enough to overcome the copious medical evidence of record which reflects the Veteran did not develop hypertension until many years after his discharge from service. The Board further notes that hypertension is listed as a chronic disease for VA disability compensation purposes. For veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for such chronic diseases, provided the diseases are manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this case, however, as is discussed in detail above, there is no probative evidence to suggest a combination of manifestations sufficient to identify hypertension in service, nor has continuity of symptomatology after discharge been demonstrated. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). In sum, the Board finds the most persuasive evidence demonstrates the Veteran's hypertension has not been shown to have its onset in service or within one year of separation therefrom, nor has it been shown to be related to service for any other reason. The Board acknowledges the Veteran's assertions regarding being diagnosed with hypertension in service. Notwithstanding, there is no objective evidence of such a diagnosis, which significantly undermines the Veteran's claim. For these reasons, service connection for hypertension must be denied. REASONS FOR REMAND 2. Entitlement to service connection for a right shoulder disability is remanded. 3. Entitlement to service connection for a left shoulder disability is remanded. 4. Entitlement to service connection for a right knee disability is remanded. 5. Entitlement to service connection for a right ankle disability is remanded. 6. Entitlement to service connection for a right foot disability is remanded. The Veteran contends his current shoulder, right knee, right ankle, and right foot disabilities are related to in-service injuries. Notably, service treatment records show the Veteran reported left shoulder discomfort for the past three months at separation in June 1992. In May 1985 he was seen with complaints of bilateral knee pain for two weeks, and in January 1986 he was noted to have hurt his right knee playing football. In June 1986, he suffered a right ankle injury playing basketball; he was seen for swelling and extreme tenderness to his later ankle. In January 1988, he was treated for right-foot related trauma and was diagnosed with probable tendonitis. In December 1989 he complained of bilateral foot pain for the past week; the assessment was developing pes planus, and foot problems were noted on the Veteran's separation examination. The Veteran was afforded VA examinations in December 2014. He was diagnosed with bilateral rotator cuff tears in both shoulders; osteoarthritis of the right ankle; degenerative joint disease of the right knee; and a right foot condition, moderate in severity. The Veteran reported continuously experiencing shoulder, right ankle, right knee, and right foot pain since service. The examiner offered negative nexus opinions, stating the Veteran had been separated from the military for 20+ years with no evidence of continuity or chronicity. However, in finding there was "no evidence" of continuity or chronicity, the examiner disregarded the Veteran's lay contentions of continuous symptoms since service. The Board cannot rely upon such a conclusion, which relies so heavily upon the absence of service treatment records. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Updated opinions are needed that consider the Veteran's lay statements of continuous systems since service. The matters are REMANDED for the following action: Schedule the Veteran for examinations to determine the nature and severity of his right shoulder, left shoulder, right knee, right ankle, and right foot disabilities. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for any relevant diagnoses are met. (b) Opine whether any of the claimed disabilities were incurred in or otherwise related to the Veteran's service. Specifically discuss the relevant service treatment notes documenting treatment for shoulder, knee, ankle, and foot conditions in service. (c) If it is determined that there is another likely etiology for the Veteran's disabilities, that should be stated. (d) The examiner should specifically discuss the Veteran's lay assertions of in-service incurrence and continuous symptoms of pain since service. The examiner should set forth all examination findings, with a clear rationale for the conclusions reached. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ryan, 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.