Case 25006017

MEGAN R. THOMAS · 2025 · Case ID: 25006017

MIXED

Summary

The Veteran, who served in the Army for less than 90 days in May 1982, appeals the denial of service connection for several conditions, including thoracolumbar spondylosis with degenerative disc disease (DJD) and hypertension. The Veteran also sought to reopen claims for internal derangement of the left knee with meniscectomy and bilateral pes planus, which had been previously denied. During a February 2022 hearing, the Veteran's attorney withdrew claims for diabetes and arthritis of the bilateral shoulders, elbows, hands, fingers, and legs. The Board dismissed these withdrawn claims. For thoracolumbar spondylosis with DJD, the Board found service connection warranted, granting the claim. This decision was based on the Veteran's credible lay testimony of in-service onset of back pain and a highly probative private medical opinion from Dr. R.T. that linked the condition to service, outweighing a deficient VA opinion. For hypertension, the Board denied service connection. While the Veteran claimed in-service onset and aggravation, the service treatment records were negative for hypertension diagnosis. A VA opinion in April 2020 concluded it was less likely than not that hypertension preexisted or was aggravated by service, finding the Veteran's blood pressure readings during service to be transient elevations, not indicative of hypertension. This opinion was deemed competent and persuasive, outweighing a private opinion that was not clearly linked to service. The claims for left knee internal derangement and bilateral pes planus were reopened based on new and material evidence but were remanded for further development, including new VA medical opinions to clarify the etiology and service connection, particularly regarding pre-existing conditions and aggravation.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

20-20 109

Full Decision Text

Citation Nr: 25006017
Decision Date: 05/01/25 Archive Date: 05/01/25

DOCKET NO. 20-20 109
DATE: May 1, 2025

ORDER

Entitlement to service connection for arthritis of the bilateral shoulders is dismissed.

Entitlement to service connection for arthritis of the bilateral elbows is dismissed.

Entitlement to service connection for arthritis of the bilateral hands and fingers is dismissed.

Entitlement to service connection for arthritis of the bilateral legs is dismissed.

Entitlement to service connection for diabetes mellitus, type II, (diabetes) is dismissed.

New and material evidence has been received and the claim of entitlement to service connection for internal derangement of the left knee with meniscectomy is reopened.

New and material evidence has been received and the claim of entitlement to service connection for bilateral pes planus is reopened.

Entitlement to service connection for thoracolumbar spondylosis with degenerative joint disease (DJD) is granted.

Entitlement to service connection for hypertension is denied.

REMANDED

Entitlement to service connection for internal derangement of the left knee with meniscectomy is remanded.

Entitlement to service connection for bilateral pes planus is remanded.

FINDINGS OF FACT

1. In February 2022, prior to the promulgation of a decision in this appeal, the Veteran requested the withdrawal of the appeal seeking entitlement to service connection for arthritis of the bilateral shoulders, arthritis of the bilateral elbows, arthritis of the bilateral hand and fingers, arthritis of the bilateral legs, and diabetes.

2. In an unappealed October 2011 rating decision, the AOJ last denied service connection for internal derangement of the left knee with meniscectomy and bilateral pes planus.

3. The evidence received since the October 2011 rating decision is new and material to the claims of service connection for internal derangement of the left knee with meniscectomy and bilateral pes planus.

4. The Veteran served on active duty for less than 90 days.

5. Resolving reasonable doubt in favor of the Veteran, the most probative evidence of record shows that his thoracolumbar spondylosis with DJD is etiologically related to service.

6. The weight of the evidence is against finding that the Veteran's hypertension began during active service or is related thereto.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of an appeal by the Veteran seeking entitlement to service connection for arthritis of the bilateral shoulders are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55.

2. The criteria for withdrawal of an appeal by the Veteran seeking entitlement to service connection for arthritis of the bilateral elbows are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55.

3. The criteria for withdrawal of an appeal by the Veteran seeking entitlement to service connection for arthritis of the bilateral hands and fingers are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55.

4. The criteria for withdrawal of an appeal by the Veteran seeking entitlement to service connection for arthritis of the bilateral legs are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55.

5. The criteria for withdrawal of an appeal by the Veteran seeking entitlement to service connection for diabetes are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55.

6. The October 2011 rating decision that last denied service connection for internal derangement of the left knee with meniscectomy and bilateral pes planus is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103.

7. Evidence received subsequent to the last final decision is new and material and the claim of service connection for internal derangement of the left knee with meniscectomy is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).

8. Evidence received subsequent to the last final decision is new and material and the claim of service connection for bilateral pes planus is reopened. 38 U.S.C.

§ 5108 (2012); 38 C.F.R. § 3.156.

9. The criteria for entitlement to service connection for thoracolumbar spondylosis with DJD are met. 38
20.1103.

8. Evidence received subsequent to the last final decision is new and material and the claim of service connection for bilateral pes planus is reopened. 38 U.S.C.

§ 5108 (2012); 38 C.F.R. § 3.156.

9. The criteria for entitlement to service connection for thoracolumbar spondylosis with DJD are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

10. The criteria for entitlement to service connection for hypertension are not met. 38?U.S.C. §§?1131, 5107; 38?C.F.R. § 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran, who is the appellant in this case, served on active duty from May 1982 to June 1982, for a total of less than 90 days.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ).

In February 2022, the Veteran testified during a virtual Board hearing before the undersigned Acting Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed.

Regardless of any RO determinations on the application to reopen, the Board has a jurisdictional responsibility to consider whether it is proper for the claim to be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to addressing the specific contentions regarding made directly by the appellant and reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).

Dismissal of Issues on Appeal Pursuant to Veteran's Request

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55(a).

The Court has held that written withdrawals of an appeal are governed by the application of regulations. See Hembree v. Wilkie, 33 Vet. App. 1,7 (2020). The applicable regulation for this legacy appeal is 38 C.F.R. § 19.55, which requires that the written withdrawal include the name of the Veteran and the file number. Additionally, the Veteran or representative must specify that the appeal is withdrawn in its entirety or list the issue or issues withdrawn from the appeal. 38 C.F.R. § 19.55(b)(1). Under 38 C.F.R. § 19.55(c), withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement as to all issues to which the withdrawal applies.

An oral?withdrawal?of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25?Vet. App.?45, 57 (2011).

In the present case, during the February 2022 Board hearing, the Veteran, through his attorney, withdrew the following claims: (1) Entitlement to service connection for arthritis of the bilateral shoulders; (2) Entitlement to service connection for arthritis of the bilateral elbows; (3) Entitlement to service connection for arthritis of the bilateral hands and fingers; (4) Entitlement to service connection for arthritis of the bilateral legs; and (5) Ent
, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25?Vet. App.?45, 57 (2011).

In the present case, during the February 2022 Board hearing, the Veteran, through his attorney, withdrew the following claims: (1) Entitlement to service connection for arthritis of the bilateral shoulders; (2) Entitlement to service connection for arthritis of the bilateral elbows; (3) Entitlement to service connection for arthritis of the bilateral hands and fingers; (4) Entitlement to service connection for arthritis of the bilateral legs; and (5) Entitlement to service connection for diabetes. This request was reduced to writing in the hearing transcript, which also identifies the Veteran by name and VA file number. 38?C.F.R. § 19.55(b)(1). Applying the relevant VA regulation, the Board finds the?Veteran properly withdrew each of these claims.

Therefore, there remain no allegations of errors of fact or law for appellate consideration for these issues. The withdrawal of these issues was made on the record during the February 2022 Board hearing by the Veteran's attorney. The hearing transcript reflects that the withdrawal was unambiguous and done with the Veteran's full understanding of the consequences of the withdrawal.

Having satisfied the requirements of 38 C.F.R. § 19.55, there remain no allegations of errors of fact or law for appellate consideration in regard to the enumerated claims. Accordingly, the Board does not have jurisdiction to review the appeal of the claims seeking entitlement to service connection for diabetes and arthritis of the bilateral shoulders, elbows, hands and fingers, and legs, and, to this extent only, the appeal is dismissed.

Petition to Reopen Previously Denied Service Connection Claims

Rating decisions are final, and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an AOJ decision to initiate an appeal by filing a Notice of Disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.1103.

VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).

Regarding applications for reopening, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Fortuck v. Principi, 17 Vet. App. 173, 179 (2003). To reopen a claim, it is not necessary that new and material evidence be received regarding each previously unproven element of a claim. Newly submitted evidence need not be overwhelming as a "low threshold" standard is applied. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010).

In an August 1982 rating decision, the AOJ denied the Veteran's claim for service connection for a left knee condition on the basis that his internal derangement of the left knee with meniscectomy clearly and unmistakably preexisted service and was not aggravated beyond natural progression during service. The Veteran did not appeal the August 1982 rating decision, nor was new and material evidence received within a year of issuance of the September 1982 notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103.

In July 1985, the Veteran sought to reopen his service connection claim for a left knee disability, and he submitted evidence in support of his claim. In a November 1985 rating decision, the AOJ denied the Veteran's claim for
claim for service connection for a left knee condition on the basis that his internal derangement of the left knee with meniscectomy clearly and unmistakably preexisted service and was not aggravated beyond natural progression during service. The Veteran did not appeal the August 1982 rating decision, nor was new and material evidence received within a year of issuance of the September 1982 notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103.

In July 1985, the Veteran sought to reopen his service connection claim for a left knee disability, and he submitted evidence in support of his claim. In a November 1985 rating decision, the AOJ denied the Veteran's claim for service connection for a left knee condition on the merits on the basis that the evidence was insufficient to show aggravation of a preexisting left knee condition beyond natural progression during service. The Veteran did not appeal the November 1985 rating decision, nor was new and material evidence received within a year of issuance of the November 1985 notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103.

In February 1988, the Veteran sought to reopen his service connection claims for a left knee condition and a bilateral feet condition, and he submitted evidence in support of his claims. In a February 1988 rating decision, the AOJ denied the Veteran's claim for service connection for a left knee condition on the basis that the evidence submitted was not new and material and denied service connection for a bilateral feet condition on the basis that the Veteran's diagnosed foot abnormalities are a developmental disability for which service connection could not be granted. The Veteran did not appeal the February 1988 rating decision, nor was new and material evidence received within a year of issuance of the March 1988 notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103.

In November 2002, the Veteran sought to reopen his service connection claims for a left knee disability and bilateral feet disability, and he submitted evidence in support of his claims. In a January 2003 rating decision, the AOJ denied the claims on the basis that evidence submitted in support of the claims was not new and material. The Veteran submitted a timely Notice of Disagreement and in August 2003, the AOJ issued a Statement of the Case further denying both claims. In September 2003, the Veteran perfected an appeal to the Board. However, in June 2004, the AOJ issued a Supplemental Statement of the Case finding the evidence submitted by the Veteran new and material, reopened both claims, but denied the claims on the merits. In May 2005, the AOJ issued a second Supplemental Statement of the Case, which reconsidered the evidence of record but again denied both claims. In November 2005, the Board determined that new and material evidence had been submitted for both claims but denied the claims on the basis that a left knee disability and bilateral pes planus preexisted service but were not aggravated beyond natural progression during service, and that post-service left knee arthritis and bilateral feet arthritis are not related to service. The Veteran appealed the Board's November 2005 decision to the Court. Because the Veteran limited his arguments on appeal to his left knee disability, the Court deemed abandoned the Veteran's claim for service connection for a bilateral feet disability. See November 16, 2007 Memorandum Decision at 1 (Hagel, J.). Regarding the Veteran's left knee claim, the Court found that the Board failed to provide an adequate statement of reasons and bases for its determination that the Veteran's left knee disability was not aggravated during service and vacated and remanded the claim to the Board.

In March 2009, the Board remanded the Veteran's claim for service connection for a left knee disability for further development, including obtaining a VA medical opinion. The Veteran was afforded a VA examination, and the examiner opined that the Veteran's left knee disability was not aggravated during service. In an August 2009 Supplemental Statement of the Case, the AOJ denied service connection for a left knee disability on the basis that it preexisted service and was not aggravated beyond natural progression during service. The case was then returned to the Board, which denied service connection in November 2009 on the basis that the Veteran's left knee disability was not aggravated beyond natural progression during service. The Veteran did not appeal the Board's November 2009 decision, which is final. See 38 U.S.C. §§ 7103(a), 7104; 38 C.F.R. § 20.1100(a).

In June 2011, the Veteran sought to reopen his service connection claims for left knee and bilateral feet
2009 Supplemental Statement of the Case, the AOJ denied service connection for a left knee disability on the basis that it preexisted service and was not aggravated beyond natural progression during service. The case was then returned to the Board, which denied service connection in November 2009 on the basis that the Veteran's left knee disability was not aggravated beyond natural progression during service. The Veteran did not appeal the Board's November 2009 decision, which is final. See 38 U.S.C. §§ 7103(a), 7104; 38 C.F.R. § 20.1100(a).

In June 2011, the Veteran sought to reopen his service connection claims for left knee and bilateral feet disabilities. In an October 2011 rating decision, the AOJ denied the Veteran's claims for service connection for a left knee disability and bilateral pes planus on the basis that evidence submitted in support of the claims was not new and material. The Veteran submitted a timely Notice of Disagreement and in October 2013, the AOJ issued a Statement of the Case further denying both claims finding the evidence submitted by the Veteran was not new and material for either claim. In October 2013, the Veteran perfected an appeal to the Board. However, in May 2014, the Veteran withdrew his appeal. Therefore, the October 2011 rating decision is final. See 38 U.S.C. §§ 7103(a), 7104; 38 C.F.R. § 20.1100(a).

In September 2015, the Veteran sought to reopen his service connection claims for left knee and bilateral feet disabilities, and filed new service connection claims, including diabetes mellitus, arthritis, a spine disorder, and hypertension. In a January 2016 rating decision, the AOJ denied the Veteran's claims for service connection for a left knee disability on the merits and denied reopening the service connection for bilateral pes planus on the basis that evidence submitted in support of the claim is not new and material. In August 2016, the Veteran requested reconsideration of the January 2016 rating decision, and in a November 2016 rating decision, the AOJ denied all claims. A Notice of Disagreement was submitted in May 2017. Following a protracted period of inaction on the Veteran's claims, in April 2019, the Veteran and his representative met with an AOJ adjudicator for an informal conference to discuss the merits of the Veteran's claims. Additional development of the claims was undertaken by the AOJ, and in April 2020, the AOJ issued a Statement of the Case denying the Veteran's claims on the merits. In April 2020, the Veteran perfected the instant appeal to the Board.

Thus, the last final denial of the Veteran's claims for entitlement to service connection for a left knee disability and bilateral pes planus was the October 2011 rating decision, which reflects the AOJ's finding that the evidence of record at the time of the decision was not new and material. Evidence of record at that time included the Veteran's June 2011 petition to reopen the claims, his lay statements, service treatment records, service personnel records, private treatment records, a July 2009 VA examination report, and July 2009 VA medical opinions.

Evidence received since the October 2011 rating decision includes the Veteran's September 2015 petition to reopen his service connection claims, lay statements, additional private treatment records, VA treatment records, VA knees and feet examination reports, the February 2022 Board hearing transcript, and February 2022 private medical opinions concluding that the left knee and bilateral pes planus disabilities preexisted service and were at least as likely as not aggravated during service. The evidence received since the October 2011 rating decision, particularly the February 2022 private medical opinions, speaks to the question of in-service aggravation of the Veteran's left knee and bilateral pes planus disabilities, and is therefore new and material. Accordingly, new and material evidence has been received, and to this extent only, the claims of service connection for a left knee disability and bilateral pes planus are reopened.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 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).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of
, the claims of service connection for a left knee disability and bilateral pes planus are reopened.

Service Connection

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

A veteran shall be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders "noted" at the time of examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1090 (Fed. Cir. 2004). Only such conditions as are recorded in examination reports are to be considered as noted, and history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Where such defects, infirmities or disorders are not so noted, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner, 370 F.3d at 1096. If a claimed disability is found to have preexisted service because it was noted on the entrance examination, the veteran can only bring a claim for aggravation of that disability, not for service connection for the disability itself. 38 U.S.C. § 1110. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability beyond the natural progress of the disease. 38 U.S.C. § 1153. If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097.

In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991).

While arthritis and hypertension are "chronic diseases" listed under 38 C.F.R. § 3.309(a), a veteran must have had at least 90 days of active service in order for the presumptive provisions to apply. See 38 U.S.C. §§ 1101, 1131, 1137; see also 38 C.F.R. §§ 3.303(b), 3.307, 3.309. As noted above, the Veteran had less than 90 days of active service. Therefore, the presumptive provisions relating to chronic diseases do not apply.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or?unpersuasive and?provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility.

A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v
3.309. As noted above, the Veteran had less than 90 days of active service. Therefore, the presumptive provisions relating to chronic diseases do not apply.

A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a?case-by-case?basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24?Vet. App.?428, 438 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22?Vet. App. 295, 300-01 (2008). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical evidence. See?Bloom v. West, 12 Vet. App. 185, 187 (1999).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).

Thoracolumbar Spondylosis with DJD

The Veteran asserts that his lumbar spine disabilities are related to his active duty service. See, e.g., February 2022 Board Hearing Transcript (Hearing Transcript) at 3; February 2022 Veteran's Post-Hearing Memorandum.

For the reasons set forth below, the Board finds that service connection is warranted.

Initially, the Veteran is currently diagnosed with lumbar spine disabilities, including lumbar spondylosis with degenerative disc disease (DJD) and lumbar muscle strain. See, e.g., May 2019 VA Back Conditions Disability Benefits Questionnaire (DBQ); September 2019 VA MRI Report. As explained above, the presumptive provisions relating to chronic diseases, including arthritis, do not apply as the Veteran had less than 90 days of active service.

Given that the record demonstrates a currently diagnosed lumbar spine disability, the dispositive questions are whether the evidence demonstrates an in-service injury or disease and a nexus between the diagnosed disability and service. Shedden, supra.

The Veteran's service treatment records are silent for symptoms, complaints, and diagnosis of a back injury or disability.

Post service treatment records reflect that the Veteran had back pain in 1984 that resulted in time off work and was asymptomatic until a work-related back injury in March 1992. A November 1992 MRI revealed bulging discs. Private treatment records dated 1994 reflect a diagnosis of chronic low back pain. See, e.g., February 1993 Correspondence, B.A., M.D.; June 1994 Orthopedic Clinic Note, D.P., M.D. Neither VA nor private treatment records attribute the Veteran's currently diagnosed lumbar spine conditions to service.

Notably, the Veteran has competently and credibly stated that his back pain onset during active duty service and continued after separation from service.
Post service treatment records reflect that the Veteran had back pain in 1984 that resulted in time off work and was asymptomatic until a work-related back injury in March 1992. A November 1992 MRI revealed bulging discs. Private treatment records dated 1994 reflect a diagnosis of chronic low back pain. See, e.g., February 1993 Correspondence, B.A., M.D.; June 1994 Orthopedic Clinic Note, D.P., M.D. Neither VA nor private treatment records attribute the Veteran's currently diagnosed lumbar spine conditions to service.

Notably, the Veteran has competently and credibly stated that his back pain onset during active duty service and continued after separation from service. See Hearing Transcript at 3; see also February 2022 Post-Hearing Memorandum at 2-3.

As noted above, the Veteran is competent to report the circumstances giving rise to the initial observable symptoms, as well as the nature of the symptoms during and after service; however, he has not been shown to be competent to diagnose more complex medical problems, such as a lumbar spine disorder, or to opine as to the etiology of such disorders, which are medical questions. See Kahana, 24 Vet. App. at 438.

In May 2019, the Veteran was afforded a VA examination, at which time he was diagnosed with lumbar spine spondylosis and lumbar muscle strain. The VA examiner opined that it is less likely than not that the Veteran's lumbar spine disorders are related to service, explaining that they are not consistent with a back muscle strain noted in the service treatment records on June 5, 1982, that, according to medical literature, back muscle strains are typically a temporary, not a chronic condition, and there is evidence that the Veteran suffered a post-service work-related back injury in 1992. The examiner added that spondylosis and disc deterioration is related to aging.

However, the Board finds deficiencies in the May 2019 opinion. The June 5, 1982 service treatment record identifies side pain, not back pain as noted by the VA examiner, although the Board recognizes that the Army clinician's handwritten notes are difficult to decipher. As noted above, the service treatment records are negative for symptoms, complaints, and diagnosis of a back injury or disability. Additionally, the VA examiner did not acknowledge that the Veteran's private treatment records reflect his endorsement of back pain in 1984, just two years after separation from service and well before the 1992 work related injury.

Furthermore, the VA examiner did not explain why greater weight was accorded to aging as the cause of the Veteran's lumbar spondylosis, given the generally known circumstances, conditions, and hardships of training involved with initial military service and that the record demonstrates that the Veteran's treatment for back pain began when he was in his early 30s. See Nieves-Rodriguez, 22 Vet. App. at 304 (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). Accordingly, the Board finds that the May 2019 direct nexus opinion has minimal probative weight.

The February 2022 medical opinion of private doctor R.T., submitted by the Veteran, concludes that it is at least as likely as not that the Veteran's lumbar spine disabilities and associated pain are related to service. R.T. explains that prior to service, the Veteran worked a demanding job for over a decade without any back problems, and after active duty service, he experienced difficulty performing any job due to chronic back pain. "[The Veteran's] enlistment medical examination makes no mention of any chronic or acute back condition." R.T. added, that the VA examiner focused on an in-service back strain, incorrectly assuming that the condition resolved. "[The examiner] does not exclude back pain caused by more serious injuries. Looking at the history of this patient, I am confident in my opinion that he [was] not simply [suffering from] low back pain due to muscle spasm." Regarding the negative separation examination, R.T. indicated that it is not uncommon for patients suffering from back disorders and associated pain not to endorse symptoms or seek treatment. "I have chronic back pain and so go to work every day, without medication." See February 2022 Correspondence, R.T., D.O. at 1-2.

R.T.'s February 2022 opinion is competent, credible, and probative: It was authored by a licensed clinician who reviewed the Veteran's claims file and was therefore familiar with the Veteran's symptoms, diagnoses, and treatment of lumbar spine disorders. The opinion was based on a review of the
[suffering from] low back pain due to muscle spasm." Regarding the negative separation examination, R.T. indicated that it is not uncommon for patients suffering from back disorders and associated pain not to endorse symptoms or seek treatment. "I have chronic back pain and so go to work every day, without medication." See February 2022 Correspondence, R.T., D.O. at 1-2.

R.T.'s February 2022 opinion is competent, credible, and probative: It was authored by a licensed clinician who reviewed the Veteran's claims file and was therefore familiar with the Veteran's symptoms, diagnoses, and treatment of lumbar spine disorders. The opinion was based on a review of the evidence of record as well as lay statements of the Veteran. The opinion is consistent with the medical evidence of record, and contains clear conclusions connected by a reasoned medical explanation. See Nieves-Rodriguez, 22 Vet. App. at 301-02. For these reasons, 2022 medical opinion constitutes probative, competent, and highly persuasive medical evidence in support of a nexus between the Veteran's low back condition and service and is the most probative medical evidence of record.

The Board finds that, overall, the evidence in this case weighs persuasively in favor of a finding that the Veteran manifested low back pain during service and that such back pain is etiologically related to his currently diagnosed low back disabilities. Therefore, service connection for thoracolumbar spondylosis with DJD is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303; see Lynch, supra.

As service connection for thoracolumbar spondylosis with DJD is being granted on a direct basis, there is no need to discuss entitlement to service connection on any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104.

Hypertension

The Veteran asserts that his hypertension is related to service or preexisted service and was aggravated beyond natural progression during active duty. See, e.g., February 2022 Hearing Transcript at 4; February 2022 Post-Hearing Memorandum.

Initially, the Board finds that the Veteran is currently diagnosed with hypertension. See, e.g., May 2019 VA Hypertension DBQ; June 2019 VA Primary Care Note.

The Veteran's service treatment records include his April 1982 enlistment examination, which notes a blood pressure reading of 138/86; however, on clinical examination there was no finding of hypertension, and such is not noted in his enlistment examination. During an in-service evaluation of left side and abdominal pain, the Veteran's blood pressure reading was 140/120. See June 5, 1982 Chronological Record of Medical Care. However, the service treatment records do not reflect diagnosis of hypertension. These records do not include a separation examination.

A single blood pressure reading is insufficient to establish a diagnosis of hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Given that a diagnosis of hypertension was not noted upon the Veteran's entry to service, the Veteran was presumed to be in sound condition at the time of enlistment, and there is no basis to question whether the presumption of soundness could be rebutted. Therefore, the analysis herein is limited to whether the currently diagnosed hypertension was incurred during military service or is related thereto. 38 C.F.R. § 3.303.

The earliest post-service evidence of hypertension is reflected in a 1987 private treatment record, which notes a blood pressure reading of 140/100 and prescription of Hydrochlorothiazide for blood pressure control. See November 1987 Patient Clinic Record. However, neither VA nor private treatment records establish that the Veteran's hypertension is related to, or was aggravated by, service.

During the February 2022 Board hearing, the Veteran asserted that he was told by physicians in the Army that he had high blood pressure, and he started taking blood pressure medication immediately upon discharge. See Hearing Transcript at 4. However, as shown above, the Veteran's service treatment records do not reflect diagnosis of hypertension.

In analyzing this claim, the Board recognizes that the Veteran, as a lay person, is competent to report observable symptoms he has experienced at any given time. However, he has not been shown to be competent to diagnose hypertension or render a competent medical opinion on the question of its etiology because answers to such questions require medical expertise and fall outside the realm of common knowledge of a lay person. See Jandreau
the February 2022 Board hearing, the Veteran asserted that he was told by physicians in the Army that he had high blood pressure, and he started taking blood pressure medication immediately upon discharge. See Hearing Transcript at 4. However, as shown above, the Veteran's service treatment records do not reflect diagnosis of hypertension.

In May 2019, the Veteran underwent a VA examination. The diagnosis was hypertension. The VA examiner opined that the Veteran's hypertension preexisted service, and that it is at least as likely as not that his hypertension was aggravated during service. The examiner explained that the Veteran's "[e]nlistment blood pressure was noted to be slightly elevated [at] 138/84" and the June 5, 1982 service record reflects that "his blood pressure was noted to be 140/120." Based on this evidence as well as the Veteran's current hypertension diagnosis, the VA examiner concluded that the Veteran's had preexisting hypertension that was aggravated during service. However, as discussed above, the record does not clearly and unmistakably establish that the Veteran's hypertension preexisted service, and the VA examiner's explanation was insufficient to rebut the presumption of soundness. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion/report based upon an inaccurate factual premise has no probative value). Therefore, the Board assigns the May 2019 VA opinion no probative weight.

The AOJ requested a new VA medical opinion. In an April 2020 VA medical opinion, a different VA examiner concluded that it is less likely than not that the Veteran's hypertension preexisted service or was aggravated by service. The examiner explained that there was "no evidence in [the] medical [records] of hypertension diagnosis and entry blood pressure was not consistent with diagnosis of hypertension." The examiner further opined that the Veteran's currently diagnosed hypertension is less likely than not related to service, explaining that the Veteran's "initial blood pressure reading was 134/86 and the only other blood pressure reading was on 6-5-1982 that was elevated at 140/120. However, the serviceman was having abdominal pain. Transient elevations in blood pressures are a common physiologic response and [are] not indicative of a diagnosis of essential hypertension."

The April 2020 VA opinion is competent, credible and probative: It was authored by a licensed physician who reviewed the Veteran's claims file and was therefore familiar with the Veteran's symptoms, diagnoses, and treatment of his hypertension; the opinion was based on a review of the evidence of record as well as lay statements of the Veteran. The opinion is consistent with the medical evidence of record and contains a clear conclusion connected by a reasoned and detailed medical explanation. See Nieves-Rodriguez, 22 Vet. App. at 301-02. Although the examiner appears to have incorrectly noted the Veteran's enlistment systolic blood pressure reading ("134" instead of "138" noted in the April 1982 enlistment examination), such appears to be a mere typographical error and does not diminish the weight given to the April 2020 medical opinion. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (explaining that an examination report "must be read as a whole"). Notably, there are no medical opinions or other competent medical evidence of record that weighs against the April 2020 VA opinion. Accordingly, the Board finds the April 2020 medical opinion to be the most highly probative, competent and persuasive medical evidence in this case.

The February 2022 medical opinion of private doctor R.T., submitted by the Veteran, concludes that the Veteran had hypertension prior to service, and that it is at least as likely as not that the Veteran's hypertension was aggravated during service. However, as shown above, the record does not clearly and unmistakably establish that the Veteran's hypertension preexisted service, as is required to rebut the presumption of soundness. See Reonal, supra. Therefore, the Board assigns R.T.'s February 2022 medical opinion no probative weight.

Although the Veteran genuinely believes that his hypertension is related to service and his statements are duly considered by the Board, the Board assigns greater probative weight to the competent and credible medical opinion provided by the April 2020 VA examiner with regard to the etiology of the Veteran's hypertension. Jandreau, supra.

Accordingly, the evidence weighs persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for hypertension is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303.

REASONS FOR REMAND

Although the service treatment records reflect that a prior left knee surgery was noted in the Veteran's April 1982 entrance examination and pes planus of both feet was noted in an April 1982 consultation sheet, no current left knee or pes planus condition was noted on the entrance examination. 38 C.F.R. § 3.304(b)(a) provides that "a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with other evidence in determinations as to inception." While previously obtained medical opinions conclude that the Veteran's currently diagnosed left knee and bilateral pes planus disabilities clearly and unmistakably existed prior to service, they seem to be lacking specific rationales for these conclusions. See Nieves-Rodriguez, 22 Vet. App. at 304 (a central issue in determining the probative value of a medical opinion is whether the examiner provides the required explanation for conclusions).

Accordingly, remand is warranted to obtain new VA medical opinions for each claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

The matters are REMANDED for the following action:

1. Ensure that all outstanding VA treatment records are associated with the claims file.

2. Obtain A VA medical opinion from an appropriately qualified examiner as to the etiology of the Veteran's currently diagnosed left knee disabilities. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner.

*The need for examination is left to the discretion of the medical professional offering the opinions. Should examination be necessary, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis.

After a complete review of the claims file, the examiner is asked to respond to the following:

(a) Identify all currently diagnosed left knee disabilities that have been present at any point since the commencement of the claim period in September 2015.

(b) Provide an opinion as to whether there is clear and unmistakable evidence that the Veteran's currently diagnosed left knee disability existed prior to his entrance to active duty. Please specifically address service treatment records regarding the Veteran's left knee, including: (i) April 29, 1982 enlistment medical examination and medical history forms reflecting notations regarding the Veteran's left knee; (ii) the June 10, 1982 Entrance Physical Standards Board Proceedings; and (iii) the June 7, 1982 Medical Record/Consultation Sheet.

***The examiner should note that a history of preservice existence of conditions recorded at the time of the entrance examination cannot by itself constitute clear and unmistakable evidence of a preexisting condition, but should be considered together with other evidence in determinations as to inception.

(c) If the examiner finds that the currently diagnosed left knee disability clearly and unmistakably preexisted service, then provide an opinion as to whether such disability clearly and unmistakably was NOT AGGRAVATED (any incremental increase in disability regardless of permanence) beyond its natural progression by the Veteran's service.

(d) If the examiner finds that the currently diagnosed left knee disability did not exist prior to the Veteran's service, then provide an opinion as to whether it is at least as likely as not that the currently diagnosed left knee disability onset during service, manifested within one year after service separation, or is otherwise etiologically related to service. *The Veteran is competent to describe observable symptoms during and after service.

A full and thorough rationale must be provided for
the examiner finds that the currently diagnosed left knee disability clearly and unmistakably preexisted service, then provide an opinion as to whether such disability clearly and unmistakably was NOT AGGRAVATED (any incremental increase in disability regardless of permanence) beyond its natural progression by the Veteran's service.

A full and thorough rationale must be provided for all opinions, referencing relevant medical and lay evidence where appropriate.

3. Obtain A VA medical opinion from an appropriately qualified examiner as to the etiology of the Veteran's currently diagnosed bilateral pes planus. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner.

After a complete review of the claims file, the examiner is asked to respond to the following:

(a) Provide an opinion as to whether there is clear and unmistakable evidence that the Veteran had bilateral pes planus that PREEXISTED his active duty. Please specifically address the service treatment record dated April 29, 1982 and captioned "Medical Record/Consultation Sheet" that reflects the handwritten notation indicating moderate bilateral pes planus (see STR-Medical folder with receipt date 02/27/2006, at page 30).

(b) If the examiner finds that bilateral pes planus clearly and unmistakably preexisted service, then provide an opinion as to whether such disability clearly and unmistakably was NOT AGGRAVATED (any incremental increase in disability regardless of permanence) beyond its natural progression by the Veteran's service.

(c) If the examiner finds that a bilateral pes planus did not pre-exist the Veteran's service, then provide an opinion as to whether it is at least as likely as not that the currently diagnosed bilateral pes planus onset during service or is otherwise related to service. *The Veteran is competent to describe observable symptoms during and after service.

A full and thorough rationale must be provided for all opinions, referencing relevant medical and lay evidence where appropriate.

4. Then, after undertaking any additional development deemed necessary readjudicate the remanded claims on appeal.

Megan R. Thomas

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board B. Farrell, 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.

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