Citation Nr: 0002692 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 97-00 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a shoulder disability. 2. Entitlement to service connection for a left knee disorder. 3. Well groundedness of a claim for service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Valerie E. French, Associate Counsel INTRODUCTION The veteran served honorably on active duty from August 1963 to September 1966. His decorations include the National Defense Service Medal. This appeal arises before the Board of Veterans' Appeals (Board) from a July 1996 rating decision of the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA), in which service connection was denied for hypertension, a bilateral knee disability, and for a bilateral shoulder disability. In November 1996, service connection was granted for ruptured medial meniscus, right knee. For the reasons stated in the decision below, the Board finds the claim for service connection for hypertension to be well grounded and this claim is the subject of a Remand which immediately follows the decisions herein. FINDINGS OF FACT 1. Service medical records show a single elevated blood pressure reading of 150/88 in January 1964. Elevated blood pressure readings of 160/80 and 150/100 are shown in April 1967, or within one year following the veteran's discharge from active duty. Post-service diagnosis of essential hypertension is initially shown on VA examination in May 1980, and the veteran is currently receiving treatment for a diagnosis of hypertension. 2. The record does not include competent medical evidence which suggests that the veteran's current diagnosis of degenerative arthritis of the shoulders is etiologically related to his period of active military service or to treatment for "shoulder pain" therein; nor does the evidence suggest that the current shoulder disability is related to or the result of in-service aggravation of a pre- service shoulder disability or that degenerative arthritis of the shoulders was manifested within the year following his discharge from active military duty. 3. The record does not include competent medical evidence which suggests that the current diagnosis of degenerative arthritis in the left knee is etiologically related to the veteran's period of active military service; nor does the evidence suggest that the current left knee disability is related to or the result of in-service aggravation of a pre- service left knee disability or that degenerative arthritis in the left knee was manifested within the year following his discharge from active duty. CONCLUSIONS OF LAW 1. The claim for service connection for hypertension is well grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999). 2. The claim for service connection for a shoulder disorder is not well grounded. 38 U.S.C.A. §§ 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.309 (1999). 3. The claim for service connection for a left knee disorder is not well grounded. 38 U.S.C.A. §§ 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION According to 38 U.S.C.A. § 1110, 1131 (West 1991 & Supp. 1999), service connection may be granted for a disability if it is shown that the veteran suffers from a disease or injury incurred in or aggravated by service. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). For certain disabilities, including hypertension and arthritis, service connection may be warranted if the disability is manifested to a compensable degree within one year following the veteran's discharge from active military duty, based on application of the provisions pertaining to service connection on a presumptive basis, which are found in 38 C.F.R. § 3.309 (1999). The threshold question that must be resolved with regard to each claim is whether the veteran has presented evidence that the claim is well grounded, that is, that each claim is plausible. If he or she has not, the appeal fails as to that claim, and the Board is under no duty to assist him or her in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999), and Murphy v. Derwinski, 1 Vet.App. 78 (1990). In order for a claim to be well grounded, there must be (1) competent evidence of a current disability as provided by a medical diagnosis, (2) evidence of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995); see also 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Alternatively, a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b) (1999). Savage v. Gober, 10 Vet. App. 489, 495-98 (1997). Shoulder Disability Service medical records show that the veteran complained of pain in both shoulders in February 1964, at which time physical examination was negative. He again complained of pain in both shoulders in March 1964, and physical examination was again negative. An impression of no disease present is shown. On a report of medical history, completed in June 1966, the veteran gave a history of a painful or "trick" shoulder or elbow. The veteran's upper extremities were clinically evaluated as normal on separation examination in June 1966, and no abnormalities were noted with regard to the shoulders. In a statement dated February 1980, J.C. Passman, M.D., reported that the veteran was begin treated for progressive left hip pain since 1976. Dr. Passman stated that the veteran had developed bilateral shoulder pain approximately one year before, and he had presented on numerous occasions with symptoms of acute bursitis which had incompletely responded to injections of steroids. In addition, x-rays had revealed calcification in the subdeltoid area. On post- service VA examination in May 1980, the veteran complained of "hurting" in both shoulders, and he gave a history of always having trouble with his shoulder, even when he was in high school. Diagnoses included mild arthritic changes of the shoulders, possibly related to vascular changes of undetermined etiology. In a statement dated October 1984, Dr. Passman indicated that the veteran's diagnoses included severe degenerative joint disease of the shoulders. A VA hospital report, dated in 1985, shows that the veteran was treated for multiple complaints including pain in the shoulders, and diagnoses included degenerative arthritis of the shoulders. A June 1989 VA medical certificate shows that the veteran complained of shoulder pain, and a diagnosis of deltoid bursitis was given. On VA examination in August 1997, diagnoses included degenerative joint disease of the bilateral shoulders. At the time of his personal hearing in October 1996, the veteran testified that he injured his shoulders while playing football. He indicated that he played quarterback and his shoulder injury probably came from giving and taking blows and from throwing the ball while playing football during high school and college. He could not remember whether he had treatment for his shoulders prior to service, but he recalled that he was having problems with his shoulders at the time of induction. Having reviewed the evidence, the Board has concluded that the veteran has failed to present evidence of a well grounded claim for service connection for a disability of his shoulders. The veteran has suggested that he had originally injured his shoulders prior to his active service, while playing quarterback on a football team in high school and college; however, there is no record of treatment for a pre- service shoulder injury which corroborates this contention and no abnormalities of the shoulders were noted at the time of the June 1963 induction examination. Although the veteran was treated for "shoulder pain" in February and March 1964, there is no indication that he suffered an injury to his shoulders at that time or that the shoulder pain was related to a re-injury or aggravation of a prior shoulder problem. At the time of that in-service treatment for unspecified shoulder pain, physical examination was negative and no diagnoses were provided. In addition, the upper extremities were clinically evaluated as normal at the time of the 1966 separation examination and no defects were noted with regard to the shoulders. Therefore, the evidence does not suggest that the veteran sustained residuals of a shoulder injury during his active duty or that a shoulder injury resulted in aggravation of a pre-existing shoulder disability. Following the veteran's discharge from active duty, there is no record of treatment, complaints, or diagnoses for shoulder problems until 1980, at which time Dr. Passman indicated that the veteran suffered from active bursitis and x-rays had revealed calcification in the shoulder joints. Dr. Passman dated the onset of the veteran's shoulder pain to approximately one year before. As such, the post-service manifestation of a shoulder disability is not shown in the record until approximately 1979, or more than 10 years following the veteran's discharge from active service. While the veteran claims to have received post-service treatment for his shoulders in 1967, there is no objective evidence or documentation to support this contention. Therefore, the record does not contain evidence of ongoing and continuing treatment for a shoulder disability from the time of his discharge from active duty until the date on which treatment for shoulder pain is initially shown. The Board notes that the veteran has not presented any evidence, to include a medical opinion, which suggests that the onset of bursitis in his shoulders and the subsequent diagnosis of degenerative joint disease of the shoulders is etiologically related to his period of active service, or to his treatment for shoulder pain on two occasions therein. In addition, the veteran has not presented a medical opinion or any other evidence which supports his contention that his current shoulder problems are the result of in-service aggravation of a pre-existing shoulder disability. Finally, the veteran has not presented any evidence showing the manifestation or diagnosis of arthritis in the shoulders within one year following his discharge from active service, such that service connection might be warranted for his shoulder disability on a presumptive basis. As a layman the appellant is not competent to offer opinions on medical causation and, moreover, the Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet.App. 482 (1992). Furthermore, lay assertions of medical causation cannot constitute evidence to render a claim well grounded. Grottveitt v. Brown, 5 Vet. App. 91, 93 (1993). For the reasons stated above, it is the opinion of the Board that the veteran has failed to present evidence of an etiological link, or nexus, between the claimed disability and his period of active service, to include evidence of service connection either on a direct basis or as a result of aggravation of a pre-service shoulder disability. As such, the requirements for a well grounded claim have not been satisfied, and accordingly, the claim for service connection for a disability of the shoulders must be denied. Although where claims are not well grounded VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim, the Court has held that VA may be obligated under 38 C.F.R. § 5103(a) (West 1996) to advise the claimant of the evidence required to complete the application. Robinette v. Brown, 8 Vet.App. 69 (1995). In the case at hand, the Board finds that this procedural consideration has been satisfied in the August 1996 Statement of the Case, in which the veteran was notified of the requirements for a well grounded claim. Left Knee Private medical records, from the period prior to active service, show that in September 1961, the veteran complained of hurting his left thigh and left knee while playing football, and findings included swelling and fluid under the knee cap. The report of a September 1961 left knee x-ray was essentially negative, with no definite gross evidence of injury and no evidence of fracture, dislocation, loose bodies within the knee joint, and no arthritic changes about the knee. Service medical records show an impression of ruptured medial meniscus in the right knee in February 1965. At that time, the veteran gave a history of injuring that knee about 5 months before. On a report of medical history, dated in January 1966, the veteran gave a history of swollen or painful joints. The veteran's lower extremities were clinically evaluated as normal on separation examination in June 1966. Service medical records are negative for complaints, treatment, or diagnoses relevant to left knee problems or abnormalities. The report of a February 1977 vocational rehabilitation general medical examination report shows that the veteran reported having a bad left hip and knee. Clinical impressions included pain in left hip and left knee, noted to be under treatment. On post-service VA examination in May 1980, no findings or diagnoses were provided with regard to the left knee. In a statement dated October 1984, J.C. Passman, M.D. indicated that on examination, the veteran's diagnoses included severe degenerative joint disease of the knees. A VA hospital report, dated in 1985, shows treatment for complaints of pain in both knees and objective findings included painful movements of both knees. Diagnoses included degenerative arthritis of both knees. An April 1996 VA medical certificate shows that the veteran complained of pain in the left knee, and a diagnostic impression of degenerative joint disease was given. At the time of his October 1996 personal hearing, the veteran testified that hurt his knees playing football in 1961, and it was his intent to claim aggravation of his knee problems during service. He reported that he was a cook during his active service, which involved a lot of standing on his knees, which was an aggravation of the condition which he had prior to service. The veteran stated that at the time of his induction, he was having problems with his knee swelling up on him and he could hardly walk. According to the veteran, his knees would hurt "real bad" during service, as he had to do a lot of standing, and he experienced a lot of pain. He sought treatment for his knees after getting out of basic training in 1964 and he was given pain pills as treatment. He did not wear a knee brace during service because of continuing threats about going on sick call, or for Article 15's or court-martial. After he left the service, he wore a knee brace and wraps on the knee. Following his discharge, he first sought treatment for his knees in 1967 with a Dr. Whitaker and a Dr. Isle. He was unable to get statements from either of these doctors as both were dead. Having reviewed the record, the Board has concluded that the veteran has failed to present evidence of a well grounded claim for service connection for a left knee disability. Specifically, the veteran has failed to demonstrate that there is an etiological link, or nexus, between the current diagnosis of degenerative arthritis in the left knee and his period of active military service. The evidence does show that the veteran sustained an injury to his left knee while playing football in 1961, or prior to his active service. However, the lower extremities were clinically evaluated as normal on induction in 1963 and the service medical records are entirely negative for complaints, treatment, or diagnoses with regard to the left knee. In addition, the lower extremities were evaluated as normal at the time of the June 1966 separation examination and no defects were noted with regard to the left knee. Post-service treatment for left knee pain is initially shown in 1977, and a diagnosis of degenerative joint disease in both knees was made by Dr. Passman in 1984. Therefore, the record does not include any medical evidence showing treatment for a left knee injury during service; nor is there evidence of in-service aggravation of the pre- service injury or any associated residuals. Furthermore, there is no medical evidence of ongoing and continuing treatment for left knee problems from the time of the veteran's active duty discharge in 1966 and treatment for left knee pain which is initially shown in 1977. :Likewise, there is no evidence of the manifestation of or diagnosis for left knee arthritis within one year following the veteran's discharge from active duty, and therefore, service connection is not warranted for degenerative arthritis in the left knee on a presumptive basis under the provisions of 38 U.S.C.A. § 3.309 (1999). Thus, the veteran has not presented any evidence, to include a medical opinion, which suggests that the current diagnosis of degenerative joint disease in the left knee is etiologically related to his period of active service; nor has he provided a medical opinion which suggests that the current left knee arthritis is related to or the result of in-service aggravation of a pre-service left knee disability. As a layman the appellant is not competent to offer opinions on medical causation and, moreover, the Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet.App. 482 (1992). Furthermore, lay assertions of medical causation cannot constitute evidence to render a claim well grounded. Grottveitt v. Brown, 5 Vet. App. 91, 93 (1993). For the reasons stated above, the Board has concluded that the veteran has failed to present evidence of an etiological link, or nexus, between the current left knee disability and his period of active military service which ended in 1966. As such, the requirements for a well grounded claim have not been satisfied, and accordingly, the claim for service connection for a left knee disability must be denied. Although where claims are not well grounded VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim, the Court has held that VA may be obligated under 38 C.F.R. § 5103(a) (West 1996) to advise the claimant of the evidence required to complete the application. Robinette v. Brown, 8 Vet.App. 69 (1995). In the case at hand, the Board finds that this procedural consideration has been satisfied in the August 1996 Statement of the Case, which informed the veteran of the requirements of a well grounded claim. Well groundedness of claim for service connection for hypertension Having reviewed the evidence of record, the Board finds the veteran's claim for service connection for hypertension to be well grounded. Specifically, the service medical records indicate an elevated reading of 150/88, recorded in January 1964, at which time a history of high blood pressure was noted. Thereafter, the veteran underwent blood pressure check on 3 consecutive days. In addition, post-service private medical records show readings of 160/80 and 150/100 in April 1967, or within one year following the veteran's discharge from active duty. Diagnosis of essential hypertension is initially shown on post-service VA examination in May 1980, and the report of a 1997 VA examination indicates a current diagnosis of essential vascular hypertension. In the Board's view, therefore, the veteran has presented evidence of a claim which is plausible, or capable of substantiation. The record demonstrates a current diagnosis of hypertension and findings of elevated blood pressure readings both during service and within one year thereafter. For these reasons, the Board finds the claim for service connection for hypertension to be well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999). ORDER As well grounded claims have not been presented, service connection is denied for a shoulder disability and for a left knee disability. The claim for service connection for hypertension is well grounded. REMAND As noted, the Board has found the veteran's claim for service connection to be well grounded. VA has a duty to assist a veteran in the development of facts which are pertinent to a well grounded claim. Littke v. Derwinski, 1 Vet.App. 90 (1990). This includes the duty to obtain medical opinions which are necessary to a determination as to whether the claimed benefits are warranted. Having reviewed the record, the Board has concluded that it is necessary to have the veteran's claims folder and medical history reviewed by a VA physician specializing in cardiovascular disorders, in order to obtain an opinion as to whether the current diagnosis of hypertension is etiologically related to the veteran's period of active service and elevated high blood pressure readings shown during service in January 1964 and in April 1967, or within the presumptive period following the veteran's discharge from service. On remand, the veteran's claims folder will be made available to the VA physician for the purpose of rendering such an opinion. Accordingly, this claim is REMANDED for the following actions: 1. The RO should contact the veteran and ask that he provide any additional information which he may have regarding dates and location of his post-service treatment for hypertension. The veteran should be informed that information showing continuity of treatment for high blood pressure or for hypertension, particularly for the period between his active duty discharge and the confirmed diagnosis of hypertension in 1980, would be helpful to his claim. The veteran and his representative should be provided with an appropriate amount of time to respond to the RO's request for additional information. Utilizing the information provided by the veteran, the RO should attempt to contact all named facilities and caregivers in order to request copies of the veteran's medical records, apart from those records which have already been associated with the claims folder and provided that the availability of any such records is reasonably certain. Any records obtained through these channels should be associated with the claims folder, as should all documentation and/or correspondence associated with the attempts to obtain additional records. 2. Upon completion of the foregoing, the RO should make the veteran's claims folder available for review by a VA physician with expertise in the area of cardiovascular disorders, for the purpose of providing an opinion as to the date of onset of the veteran's hypertension. The physician-reviewer should be asked to consider the veteran's entire medical history, including the service medical records and post-service treatment reports. The examiner should be asked to comment upon the significance of the elevated blood pressure reading of 150/88, as shown during service in January 1964, and two additional elevated readings shown in April 1967, or within one year following the veteran's discharge from active service. The Board is specifically interested in an opinion as to the date of onset of the veteran's hypertension; whether the elevated readings shown in April 1967 represented the manifestation of hypertension within one year following the veteran's discharge from active service; and as to whether the veteran's subsequent diagnosis and treatment for essential hypertension, beginning in 1980, is related to his period of active military service. Complete rationales and bases, along with explanation of the medical and scientific principles involved, is required. If the requested opinions cannot be provided, the reasons therefor should be adequately explained. In order to facilitate review of the veteran's entire medical history, the veteran's claims folder must be provided to the physician-reviewer along with a copy of this Remand. 3. Thereafter, the RO should review the claims folder in order to ensure that the specified evidentiary development has been completed to the extent possible. If any development remains incomplete, appropriate corrective measures should be taken. If the report of the VA physician-reviewer does not contain all of the opinions or findings requested, it should be returned for completion. 4. Upon finding that the required development has been completed to the fullest extent possible, the RO should review the appellant's claim based on all of the evidence which is now of record, in order to determine whether a favorable outcome is now warranted. If the decision remains adverse, the RO should provide the appellant and his representative with a Supplemental Statement of the Case, along with an adequate period of time within which to respond thereto. Thereafter, the case should be returned to the Board for further action, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. The purpose of this remand is to conduct further evidentiary development. The Board intimates no opinion as to the ultimate outcome of the claim on appeal. C. P. RUSSELL Member, Board of Veterans' Appeals