Citation Nr: 1749773 Decision Date: 11/02/17 Archive Date: 11/13/17 DOCKET NO. 08-36 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral hip condition, including as secondary to a lumbar spine condition. 2. Entitlement to service connection for hypertension, including as secondary to a sleep apnea/sinus condition. 3. Entitlement to service connection for a bilateral knee disability, to include as secondary to a lumbar spine disability. REPRESENTATION Appellant represented by: Barry Salzman, Esq. WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McGoings, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1987 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2010, a Board hearing was held where the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the Veteran's file. The Veteran also had a hearing on these two issues before Veterans Law Judge Wayne Braeuer in June 2013, and a transcript from that hearing is also in the Veteran's file. In March 2014 the issues on appeal were remanded by the Board in order for the RO to obtain additional records and to schedule the Veteran for necessary VA examinations. The Board finds that there has been substantial compliance with the Board's remand directives, and the matter is now appropriately before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Since the Veteran had hearings before two Veterans Law Judges on the same issues, the 2014 Board decision/remand was issued by a panel of three judges. However, Veterans Law Judge Braeuer has since retired, so it is no longer necessary to issue a panel decision. The undersigned Veterans Law Judge remains available to decide the issues before her from the 2010 hearing. Finally, the Veteran has other appeals pending, including those presented at a hearing before Veterans Law Judge Kathy Banfield in 2016 and at a hearing before Veterans Law Judge Ursula Powell in 2017. The Veteran's other claims will be addressed in separate Board decisions, according to their docket numbers, by those judges. FINDINGS OF FACT 1. The Veteran's bilateral hip pain is caused by radiculopathy, a condition for which the Veteran is already service connected. 2. The Veteran's hypertension did not begin during and was not otherwise caused by his military service; his hypertension was not caused by and has not been aggravated by his service-connected sleep apnea/sinus condition. 3. The Veteran's bilateral knee disability did not begin during and was not otherwise caused by his military service; his bilateral knee disability was not caused by and has not been aggravated by his service-connected lumbar spine condition. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hip disability, including as secondary to a lumbar spine disability, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2016). 2. The criteria for service connection for hypertension, including as secondary to service connected sleep apnea/sinus disabilities, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2016). 3. The criteria for service connection for a bilateral knee disability, including as secondary to a lumbar spine disability, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104 (d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The points below focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to 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). Thus, the Board need not discuss any potential issues in this regard. Further, the Veteran has not alleged any deficiency with the conduct of his hearings as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The regulations pertinent to this decision have been provided to the Veteran in the Statements of the Case, the March 2014 Board decision, and the December 2016 Supplemental Statement of the Case. Since he has had adequate notice of the pertinent laws, they will not be repeated in exhaustive detail here. Service Connection, Bilateral hips Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In the context of claims for secondary service connection under 38 C.F.R. § 3.310, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to (caused by) the service-connected disability or disabilities on the other. Buckley v. West, 12 Vet. App. 76, 84 (1998); Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Secondary service connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran's enlistment examination, dated August 1987, is silent for any hip related conditions upon entry. Service treatment records are also silent for any complaints, treatment, or a diagnosis of a hip injury or condition. The Veteran's separation exam is not of record. Records from a private examiner, dated March 2012, contain a positive nexus opinion linking the Veteran's bilateral hip pain to military service. As support for his findings, the examiner states that due to the Veteran's age (he was 45), and the absence of medical evidence showing any injuries other than the incident in service involving a pallet filled with paper falling on the Veteran, the Veteran's condition is related to service. The examiner also noted that, in his opinion, the MRI scans of the Veteran's hips were unremarkable and described the Veteran's symptoms as "predominantly low back pain radiating into the hips and extremities." The examiner did not actually diagnose the Veteran with a bilateral hip disability. It is also noted that the private examiner completed a thorough review of the Veteran's claims file. Numerous outpatient VA treatment records confirm the Veteran's complaints of bilateral hip pain, but do not contain a medical opinion diagnosing the Veteran with a bilateral hip disability that was incurred in, or the result of, military service. In April 2012, the Veteran underwent a VA examination wherein the examiner opined that the Veteran's hip disability, a bilateral hip strain, was less likely as not caused by service. As support, the examiner noted the absence of any medical evidence of any chronic hip condition diagnosis, or treatment, in the Veteran's service records and medical history. An August 2016 VA examiner opined that the Veteran does not have a current diagnosis associated with his bilateral hips. In addressing direct service connection, the examiner stated that it is less likely than not that the Veteran's bilateral hip condition was incurred in, or caused by, service. As support for this finding, the examiner references the Veteran's only hip diagnosis, which was in 2012, and states that if the Veteran's hip strain was related to an in-service event or injury, it would have manifested closer to the time of the injury, rather than 23 years later. As for secondary service connection, the examiner stated that the Veteran's bilateral hip condition is neither caused, or aggravated by, the Veteran's service connected lumbar spine condition. As support for this finding, the examiner reiterates that the Veteran does not have a separate and distinct bilateral hip condition, rather, that his hip pain is caused by radiation from his lumbar spine condition. The examiner ultimately concludes that it is more likely than not that the Veteran's bilateral hip pain is due to radiculopathy from the Veteran's back condition, for which he has already been service connected. The Board notes that a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C.A. § 1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. To the extent that the Veteran, and those who have submitted buddy statements, have asserted their personal belief that there exists a medical relationship between the Veteran's bilateral hip pain and service, this provides no basis for allowing the claim. The etiology of hip pain, in this case due to radiculopathy, is a complex medical question not capable of lay observation. In this Veteran's case, the question is additionally complicated by the significant passage of time since service. The Veteran has not demonstrated that he has the knowledge or skill to assess a complex medical condition that requires consideration and interpretation of clinical tests, X-rays or imaging studies, and an understanding of the musculoskeletal systems and related disorders. Accordingly, he is not competent to provide an opinion as to the etiology of his current bilateral hip pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). After review, the Board finds that the greater weight of the evidence indicates that the Veteran's hip pain is due to radiculopathy, a condition for which he was granted service connection in a December 2016 rating decision. The evidence is not in equipoise; rather, the greater weight of it is against the claim. Gilbert, 1 Vet.App. at 53-56. Accordingly, entitlement to service connection for a bilateral hip disability, including as secondary to the Veteran's lumbar spine condition, is denied. Service Connection, Hypertension The Veteran seeks entitlement to service connection for hypertension, including as secondary to service-connected sleep apnea/sinus disabilities and treatment therefore. Disabilities encompassed by the list of chronic diseases under 38 C.F.R. § 3.309(a) may be service-connected pursuant to the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology. Hypertension is included on the list of chronic diseases, so the provisions relating to continuity of symptomatology apply and the Board has considered them. Importantly, the Veteran was first diagnosed with hypertension in 2007, many years after his active service. See, e.g., August 2016 VA Examination. The greater weight of the evidence is against finding that the Veteran had a continuity of symptomatology of hypertension, including the fact that the August 2016 VA examiner opined that there is no evidence that the Veteran's hypertension met the minimum compensable degree of at least 10 percent disabling within one year following service. Id. Service connection for hypertension as a chronic disease pursuant to the provisions of 38 C.F.R. § 3.303(b) is not warranted based on this record. Here, a current disability is established and the dispositive element is whether there is any etiological relationship between the Veteran's hypertension and an event/injury in active service or whether the condition was caused or aggravated by service-connected sleep apnea/sinus condition. The Veteran's own etiological opinions are not competent evidence in this case, where diagnosis of the condition (hypertension) requires diagnostic testing and the determination of the cause of the conditions requires specialized knowledge, training, and experience. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012); Jandreau, 492 F.3d at 1377. His statements regarding observable symptoms and reports of prior medical treatment have been considered in the context of the competent medical opinions. Private treatment records, dated July 2007, provide a positive nexus opinion linking the Veteran's hypertension to moderate obstructive sleep apnea with hypoxemia. The examiner performed a physical examination, as well as a sleep study using a CPAP (continuous positive airway pressure) machine. An August 2011 VA examiner opined that the Veteran's hypertension is less likely as not to have been caused, or aggravated by, military service. The examiner pointed to the fact that the Veteran exited the service in 1991, yet, by his own admission, began treatment for hypertension in 2002. This, coupled with the fact that the Veteran was not diagnosed with, or treated for, hypertension during service was the basis for the examiner's negative nexus opinion. In August 2016, the Veteran was afforded an additional VA examination to assess his hypertension. As for direct service connection, the examiner opined that it is less likely than not that any current hypertension had its inception during the Veteran's active military service. The examiner states that evidence in the Veteran's records show normal blood pressure readings, except during nasal surgery and in the recovery room following surgery. Perioperative hypertension is commonly encountered in patients that undergo surgery due to anesthesia, stress and pain and does not generally progress into chronic hypertension. Regarding the issue of secondary service connection, the examiner opined that it is less likely than not that the Veteran's hypertension was either caused by or aggravated by his service connected sinus disability or sleep apnea. As support, the examiner states that the weight of mainstream medical literature does not support the claim that hypertension is either caused by, or aggravated by, sinus disabilities or sleep apnea. The examiner also adds that sleep apnea may temporarily raise blood pressure during apneic periods; however, the Veteran's sleep apnea in this case is/was being treated with CPAP, so this should not be an issue. The Board notes that the record contains conflicting etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). In this case, the Veteran received a medical opinion from a private examiner who opined that the Veteran's hypertension is related to his sleep apnea/sinus disability. Unfortunately, despite a physical examination and a sleep study, the examiner did not support his nexus opinion with any reasons and bases, nor did he indicate that he reviewed the Veteran's claims file. In comparison, the VA examiners reviewed the claims file and performed the necessary testing. Further, the August 2016 VA examiner found that the Veteran's hypertension was not due to military service, or the Veteran's service connected sleep apnea, and, as reasoning stated that the weight of mainstream medical literature does not support the claim that hypertension is either caused by, or aggravated by, sinus disabilities or sleep apnea. The Board therefore finds the medical opinion of the VA examiner to be more probative than that of the private examiner because the VA examiner reviewed the claims file and provided adequate reasons and bases for his findings and conclusions, along with a review of pertinent medical literature. The Board finds that the record is absent any probative medical evidence that links the Veteran's hypertension to military service or a service-connected disability. The evidence is not in equipoise, rather the greater weight of it is against the claim. Gilbert, 1 Vet.App. at 53-56. Accordingly, entitlement to service connection for hypertension, including as secondary to sleep apnea/sinus condition, is denied. Service Connection, Bilateral Knees The Veteran seeks entitlement to service connection for a bilateral knee disability, including as secondary to a service-connected a lumbar spine disability. The Veteran's own etiological opinions, as well as those opinions submitted by fellow service members, are not competent evidence in this case, where diagnosis of the condition, a knee disability, requires diagnostic testing and the determination of the cause of the condition requires specialized knowledge, training, and experience. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012); Jandreau, 492 F.3d at 1377. The statements regarding the in-service injury, observable symptoms, and reports of prior medical treatment have been considered in the context of the competent medical opinions. In a March 2014 Board remand, an in-service injury to both the Veteran's right and left knees was conceded based on the Veteran's competent and credible lay statements, as well as corroborating statements from fellow service members. Here, a current disability is established and the dispositive element is whether there is any etiological relationship between the Veteran's knee disability and an event/injury in active service or whether the condition was caused or aggravated by a service-connected lumbar spine disability. The Veteran's enlistment examination, dated August 1987, is silent for any knee related conditions upon entry. Service treatment records are also silent for any complaints, treatment, or a diagnosis of a knee injury or condition. The Veteran's separation exam is not of record. In November 2006, the Veteran reported to the Tyrone Chiropractic Clinic and only reported back and hip pain. Private medical records, dated October 2007, note that the Veteran began experiencing pain in his left knee one year prior, and, that there was "no history of trauma per se." Imaging studies of the knee clearly showed a meniscus tear, however, the examiner did not opine as to the etiology of the condition. Numerous outpatient VA treatment records confirm the Veteran's complaints of bilateral knee pain, primarily in his left knee, but do not contain a medical opinion diagnosing the Veteran with a bilateral knee disability that was incurred in, or the result of, military service. In April 2012 a VA examiner opined that the Veteran's bilateral knee disability is less likely as not caused by military service based on no evidence of complaints of, or treatment for, any knee related complications during service. During the examination, the Veteran denied any direct injury to either of his knees, and, denied any knee related treatment during service. In August 2016, the Veteran was afforded an additional VA examination pursuant to the March 2014 remand instructions. As for direct service connection, the examiner opined that the Veteran's bilateral knee condition is less likely than not related to active duty military service. As support, the examiner references the Veteran's service treatment records, which are silent for complaints or treatment for a chronic bilateral knee condition. Specific to the left knee, the examiner noted the Veteran's torn meniscus and mild degenerative joint disease, but, explains that if the torn meniscus occurred at the time of the in-service injury in 1989, one would expect the diagnosis to be made at the time of the injury rather than 18 years later. For the right knee, the examiner noted the Veteran's torn meniscus and mild degenerative joint disease, but, explains that if the torn meniscus occurred at the time of the in-service injury in 1989, one would expect the diagnosis to be made at the time of the injury rather than 25 years later. The examiner goes on to say that the Veteran's bilateral mild degenerative joint disease is normal for his age. Addressing the Veteran's claim for secondary service connection, the examiner opined that the weight of the mainstream medical literature is against an association between degenerative joint disease, a torn meniscus, and either of the conditions being caused or aggravated by degenerative joint disease of the lumbar spine. The evidence fails to establish that the Veteran has a bilateral knee disability that was incurred in, or the result of, military service. Nor does the evidence demonstrate an etiological relationship between the Veteran's bilateral knee disability and his service connected lumbar spine disability. Further, the evidence does not show that the Veteran's degenerative joint disease developed to a compensable degree within one year after release from military service. The evidence is not in equipoise, rather the greater weight of it is against the claim. Gilbert, 1 Vet.App. at 53-56. Accordingly, entitlement to service connection for a right knee disability, to include as secondary to a lumbar spine disability, is denied. ORDER Entitlement to service connection for a bilateral hip condition, secondary to lumbar spine condition, is denied. Entitlement to service connection for hypertension, secondary to sleep apnea/sinus condition, is denied. Entitlement to service connection for a bilateral knee condition, secondary to a lumbar spine condition, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs