Citation Nr: 1537816 Decision Date: 09/03/15 Archive Date: 09/10/15 DOCKET NO. 12-32 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a heart disorder. 2. Entitlement to service connection for hypertension. 3. Entitlement to a compensable disability rating for hepatitis C. REPRESENTATION Appellant represented by: Robert E. Norton, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active service from January 1975 to February 2000. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the New Orleans, Louisiana regional Office (RO) of the United States Department of Veterans Affairs (VA). In an August 2009 rating decision, the RO denied service connection for a heart disorder and hypertension. In an April 2013 rating decision, the RO granted service connection for hepatitis C and assigned a noncompensable disability rating. In September 2014, the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. The Board notes that in July 2015 the Veteran filed a notice of disagreement with the RO's May 2015 rating decision granting service connection for degenerative disc disease and radiculopathy for the left lower extremity and assigning a rating of 10 percent for each effective February 3, 2009. The RO has not yet issued a statement of the case. The issue of entitlement to a compensable disability rating for hepatitis C being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACTS 1. The Veteran's hypertension did not onset in service and is not etiologically related to service. 2. The Veteran's hypertensive heart disease did not onset in service and is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2014). 2. The criteria for service connection for hypertensive heart disease have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, 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. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d 1372. Service connection may also be granted on a presumptive basis for certain chronic diseases, including cardiovascular-renal disease, if shown to be manifest to a degree of 10 percent or more within one year following a veteran's separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). It is noted that in 38 C.F.R. § 3.309, the term cardiovascular-renal disease applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and that since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the one-year period following separation will be given the same benefit of service connection as any of the other chronic diseases listed in that Section. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that after the Veteran submitted his claim for VA disability compensation, the RO sought the Veteran's service medical records. A small number of service medical records were obtained, including reports of a service entrance examination, a 1993 service examination, and some dental treatment records. Records of treatment other than dental, of the Veteran during his twenty-five years of service were not obtained. The RO made multiple attempts to obtain the records, as did the Veteran. In a July 2009 memorandum, an RO military records specialist made a determination that all efforts to obtain the records had been exhausted, that further attempts were futile, and that those records were not available. In the context of service medical records that were destroyed or are presumed to have been destroyed at a government records facility in 1973, the Court indicated that the Board has a heightened obligation to explain its findings and conclusions, and to carefully consider the requirement that the benefit of the doubt be resolved in favor of the Veteran. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Gregory v. Brown, 8 Vet. App. 563, 570 (1996). The Veteran served after 1973, so his records could not have been destroyed in that fire. The Board is sympathetic, however, regarding the unfortunate and unexplained unavailability of his service medical records. Thus, in addressing his claims, the Board will take heightened care with explaining its findings and conclusions, and will carefully consider the requirement that the benefit of the doubt be resolved in favor of the veteran. At his September 2014 Board hearing the Veteran testified that he first began experiencing problems with hypertension, specifically, fatigue and a racing heartbeat, in the late 1990s while in service. He testified that he underwent heart testing in service based on a family history of heart problems. However, he stated that he did not know he had hypertension in service and was not prescribed medication for it until 2008. VA treatment records show that hypertension was first diagnosed at the VA in August 2008. He also underwent cardiac testing at that time. An ultrasound showed normal pumping function with some mild relaxation problems. An EKG was indeterminate for exercise induced ischemia while he had a negative stress echo for ischemia. A March 2009 VA treatment record reflects that the Veteran reported he saw a cardiologist in Holland in the 1990s who told him his ventricles "pop open" too hard but did not give him a specific diagnosis. In a December 2014 statement, a private cardiologist stated that recent cardiac evaluations are consistent with the Veteran's diagnosis of hypertensive heart disease. The Veteran underwent a VA examination in April 2015. The examiner opined that it is less likely than not that the Veteran's hypertension and hypertensive heart disease began during and continued after service or is otherwise causally related to his service. The examiner noted that in November 1993 the Veteran's periodic service examination showed his heart and vascular status was clinically evaluated as normal and his blood pressure was 113/73. He wasn't diagnosed by the VA with hypertension until eight years following his discharge from service. At his examination the Veteran reported that around 1997 he experienced heart palpitations. He reported his blood pressure at the time was 135-138/90. He recalled he had shortness of breath and was given a profile of no running. The examiner concluded that the Veteran's fast heart beat must have resolved as his service records do not indicate subsequent monitoring or continued profile. With respect to whether the Veteran's hypertension and hypertensive heart disease began in service, the Board acknowledges the lack of service treatment records that would either reflect or not diagnoses of the conditions in service. However, the Board finds that the evidence does not support that he was diagnosed with either condition in service. Although in his 2009 notice of disagreement the Veteran stated that he was diagnosed with the conditions in service, at both his 2014 Board hearing and in 2009 VA treatment records the Veteran indicated that he did not receive a hypertension or heart condition diagnosis in service despite undergoing testing other than being told that his ventricles pop open too hard. Further, the Veteran stated, and VA treatment records reflect, that the Veteran was first diagnosed with and prescribed medicine for hypertension in 2008, more than seven years after his separation from service. No evidence has been submitted and the Veteran has not testified that he sought treatment for either hypertension or a heart condition between his discharge from service in 2000 and beginning treatment with the VA in 2008. The Board particularly finds the Veteran's statements made in the context of seeking medical treatment to be highly probative and they do not support any contention that the Veteran was diagnosed in service with hypertension or hypertensive heart disease. The Board also finds that to the extent that the Veteran himself has opined that his hypertension and hypertensive heart disease began in service, he is not competent as a lay person to do so. Specifically, the Veteran has testified that he experienced fatigue and a racing heart beat in service, which he attributed to his now-diagnosed hypertension and hypertensive heart disease. However, while the Veteran is competent to report a symptom such as a racing heartbeat, he is not competent to diagnose himself with either hypertension or hypertensive heart disease based on his observation of that symptom. Both conditions require specialized medical testing to diagnose. As a lay person, the Veteran does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of his hypertension or hypertensive heart disease. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau, 492 F.3d at 1376-77. Similarly, the Board finds that the evidence does not support the contention that the Veteran's hypertension or hypertensive heart disease began within one year of his separation from service, and thus he is not entitled to presumptive service connection. Finally, the Board finds a preponderance of the evidence is against finding that the Veteran's hypertension and hypertensive heart disease is related to his service. The April 2015 VA examiner reviewed the Veteran's medical records and listened to the Veteran's assertions, but opined that the Veteran's conditions are not related to his service. To the extent that the Veteran himself has opined that his conditions are related to some aspect of his service, the Board finds his opinion as to such a complicated cardiac question has little probative weight. The Board finds that overall the evidence weighs against finding that the Veteran's hypertension or hypertensive heart disease began or is related to his service. As a preponderance of the evidence is against the Veteran's claims, the benefit of the doubt doctrine does not apply, and his claims must be denied. ORDER Service connection for a heart disorder is denied. Service connection for hypertension is denied. REMAND The Veteran appealed the RO's 2009 denial of service connection for hepatitis C. While that appeal was pending, the RO, in 2013, granted service connection for hepatitis C. In 2014, the Veteran filed an NOD with the noncompensable rating that the RO assigned. In May 2015 the RO issued a statement of the case. In July 2015 the Veteran filed a substantive appeal as to the rating assigned for hepatitis C. On the form, the Veteran requested a Board videoconference hearing. Therefore, on remand the Veteran should be scheduled for his requested Board hearing. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for a videoconference hearing with a member of the Board of Veterans Appeals with respect to his claim for an initial compensable rating for hepatitis C. The RO should notify the Veteran of the date and time of the hearing in accordance with 38 C.F.R. § 20.704(b) (2013). After the hearing, the claims folder should be returned to the Board in accordance with current appellate procedure. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs