Citation Nr: 1751419 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 14-01 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for nose bleeds, to include as due to hypertension. 3. Entitlement to service connection for a disorder resulting in shortness of breath. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Appellant served in the U.S. Army National Guard on active duty for training (ACDUTRA) from August 1988 to November 1988. He has additional periods of inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Appellant testified before a Decision Review Officer at a formal RO hearing in November 2013. A transcript of that hearing is contained in the electronic claims file. FINDINGS OF FACT 1. Hypertension was not manifest during active service nor within one year of discharge from active service and it is not shown to have developed as a result of an established event, injury, or disease during active service or a period of active duty for training. 2. Nose bleeds are not shown to have developed as a result of an established event, injury, or disease during a period of active duty for training. The evidence does not establish that the Appellant's nose bleeds are due to his hypertension, and his hypertension has not been found to be service-connected. 3. A disorder resulting in shortness of breath is not shown to have developed as a result of an established event, injury, or disease during a period of active duty for training. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 4.125(a) (2017). 2. Nose bleeds were not incurred in or aggravated by service, or caused by a service-connected disability. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310(a) (2017). 3. A disorder resulting in shortness of breath was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 4.125(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter provided in May 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The electronic record contains the Appellant's VA treatment records, private treatment records, some service personnel records, and some service treatment records. The Board notes that the service treatment records appear incomplete (there is no separation evaluation or medical history report), and the copies are in bad shape such that some are only partially legible. The United States Court of Appeals for Veteran's Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). To the extent that the record does not list the Appellant's specific dates of INACDUTRA, the Board notes that this does not impact the decisions regarding these issues as they are diseases (epitaxies and hypertension) and not injuries. This will be further discussed below. In 2015, the Appellant was afforded VA examinations in relation to his claims. The examiner reviewed the records, interviewed the Veteran, and provided medical diagnosis, opinions, and rationales. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first 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). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The term "veteran" is defined, in relevant part, as "a person who served in active military, naval, or air service..." 38 U.S.C.A. § 101 (2); see also 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101 (24), 38 C.F.R. § 3.6 (a), (d). Thus, the definitional statute, 38 U.S.C.A. § 101 (24), makes a clear distinction between those who have served on active duty and those who have served on INACDUTRA. As the appellant is not currently service connected for a disability, he is referred to as an appellant and not a veteran throughout this decision. Service connection for a person on inactive duty for training is permitted only for injuries, not diseases, incurred or aggravated in line of duty. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). VA's General Counsel has held that it was the intention of Congress when it defined active service in 38 U.S.C.A. § 101 (24) to exclude INACDUTRA during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. VAOPGCPREC 86-90 (Jul. 18, 1990). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (adding that "[w]hen service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition"). Additionally, service connection may be established by the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Hypertension is rated under 38 C.F.R. § 4.104, Diagnostic Code 7101. For purposes of rating under this section, the term "hypertension" means that the diastolic blood pressure is predominantly 90mm or greater, and "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ("A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' to prevail."). Factual Background In April 2010, the appellant filed formal claims for service connection for hypertension, nose bleeds, and breathing problems. He alleged that these disabilities began in 1988. He listed his service as being from August 11,1988 to November 17, 1988. An accompanying statement noted his contention that he was "sick because of [his] active duty training." The appellant's DD 214 notes that he served in the Army National Guard from August 1988 to November 1988 as a cannon crewman. The appellant's service treatment records are limited, and some are difficult to read. The records include his enlistment evaluation where he had a normal medical examination except for asymptomatic pes planus, and his blood pressure was 128/80. On his enlistment medical history, the appellant denied any pertinent medical history except for venereal disease. There are limited treatment records, including a notation of vision impairment on enlistment and a list of immunizations. There is a July 1989 record that noted blood pressure of 122/68; it is unclear why this record of blood pressure, temperature (99 degrees) and respirations were recorded as the remainder of the record is illegible. Service personnel records show that the appellant was released from the Army Reserves in May 1996. He was noted to have active duty training from August 1988 to November 1988, when he reverted to Army National Guard service. He was discharged from the Army National Guard in February 1990. A NGB Form 22 noted that the Veteran was released from the Army National Guard in February 1990 due to being an unsatisfactory participant. This form included that he had three months and seven days of active federal service. Private treatment records from Headland Family Services from November 2002 showed that the appellant had hypertension. He was on medication and avoiding excess salt. It was noted he had a family history of hypertension through his father. The private treatment records did not include complaint of nose bleeds or a diagnosis related to a breathing disorder. A review of his eyes, nose, and throat did not find any abnormalities. A Southeast Alabama Medical Center record from February 2007 included an active problem list which listed hypertension. He was also noted to have a history of substance abuse of cocaine, opioids, and alcohol. His family history included that his father had hypertension. The Veteran was admitted into the hospital with abdominal pain, dehydration, nausea/vomiting, and alcohol dependency. He was noted during his review of symptoms on his first day in the hospital to use cocaine regularly and to drink alcohol regularly. In October 2010, the Veteran was afforded a VA hypertension examination. The Veteran reported he developed hypertension in 1991 while in service. "He is unsure of an actual diagnosis. He was not put on medications." He additionally reported a history of dyspnea on moderate exertion. There was no evidence of congestive heart failure or pulmonary hypertension. There was no evidence of abnormal breath sounds. He was noted to have uncontrolled hypertension, on medication. The Veteran reported that the effects of his hypertension were headaches, nose bleeds, and shortness of breath with any physical strenuous activity. At that time, he was employed full time working in construction. A medical opinion was not provided. An October 2010 chest x-ray was negative ("no active infiltrate"). In a November 2010 rating decision, the RO denied entitlement to service connection for nose bleeds, a breathing disorder, and hypertension. The appellant provided a notice of disagreement where he stated that he went to "your doctor" and was told he was about to have a stroke or heart attack because his blood pressure readings were so high. He stated that he did not have high blood pressure before he joined the Army and he believes that his exposure to gunpowder started his high blood pressure and his bloody nose. An October 2013 VA treatment record noted that he had a diagnosis of benign hypertension and syncope (fainting). In November 2013, the appellant provided testimony at a formal RO hearing. He stated that his service was in "tanks" and that he "load[ed] the tanks and load[ed] the gas powder in the tanks." When the tanks shot, the fumes "got to" the appellant and he collapsed. He believes that this is when he developed high blood pressure, nose bleeds, and a breathing disorder. He noted that his breathing disorder feels like he is trying to take a breath but not enough air comes. He stated that this was due to his hypertension. He reported that when he had to mow the lawn he would put cotton swabs in his nose because he knew that activity would cause nose bleeds. He appears to be stating that being around gas fumes will make his nose bleed, make him dizzy, and make his breathing difficult. The appellant reported that while he was at "summer camp" and he had the bad reaction to the tank fumes, he went to sick call and his blood pressure was "sky high." The appellant noted that he was told in service that his blood pressure was high due to "the gaseous materials." He stated that after he was released from training he immediately sought medical treatment for his hypertension, from his family physician. He stated he was put on blood pressure medication immediately. He stated that he regularly had nose bleeds and that he had been told it was because his nasal passages get dry. He treats his nose bleeds by putting "grease and stuff" in his nose and using a "nose sniffer." He stated that "when it gets dr[y], it's going to bleed." He stated that a physician had not told him why he felt he was unable to breath at times because he did not have the money to seek medical attention. In September 2015, the appellant reported that he worked out every morning, consisting of a jogging. And "sometimes [his] nose would start to bleed, and it would cause [him] to become dizzy." He stated that this had happened on several occasions. A September 2015 VA hypertension examination included that the appellant had a diagnosis of hypertension from an unknown date. The appellant reported he was unable to recall the date he was diagnosed with hypertension. The examiner provided a negative nexus opinion between the appellant's current hypertension and his service. The examiner noted that although the appellant had a diagnosis of hypertension and was using medication to control his hypertension, there was no indication that this disease started in service. Also in September 2015, the appellant was afforded a VA sinusitis, rhinitis, and other conditions of the nose examination. The examiner noted that based on a review of the record, the appellant had not been diagnosed with a sinus, nose, throat, larynx, or pharynx condition. The appellant was claiming shortness of breath and nose bleeds. He reported he was treated for nose bleeds and shortness of breath with exercise, dizziness, and nausea in service. He reported current nose bleeds twice per week for a few minutes, stopping on their own. He related his nose bleeds to his hypertension. Chest x-rays from September 2015 were normal. Pulmonary Function Tests (PFTs) from September 2015 were also normal. The examiner provided a negative nexus opinion between the Veteran's service and his nose bleeds. The examiner noted that based on the evidence, it could not be corroborated that the Veteran had chronic epitaxies in service or since leaving service. Additionally, although he reported shortness of breath, he had no respiratory diagnosis in service or since leaving service and had a normal chest x-ray and PFTs on examination. "Regrettably, it is less likely as not the claimed hypertension, nose bleeds, or shortness of breath is related to service." A February 2017 treatment record from Southeast Alabama Medical Center included that the Veteran had diagnoses of chest pain, diabetes, obesity, a history of hypertension, and a history of coronary artery disease with bypass surgery in 2013. He was noncompliant and not on any medications. Analysis Initially, the Board notes that the appellant's service personnel records are contained in the record, but his specific dates of INACDUTRA have not been sourced. Given the issues on appeal, the dates of his INACDUTRA service are not necessary for a determination. In order to establish basic eligibility for veterans' benefits based upon INACDUTRA, the appellant must first establish that he was disabled from an injury incurred or aggravated in the line of duty. See Laruan v. West, 11 Vet. App. 80, 84-86 (1998) (en banc) (holding that, because VA was created for the benefit of veterans, a person seeking veterans' benefits must bear the initial burden of establishing his or her veteran status) (rev'd on other grounds, D'Amico v. West, 12 Vet. App. 264 (1999)); see also Paulson v. Brown, 7 Vet App. 466, 470 (1995). Here, the appellant has alleged through testimony that his claimed disabilities are due to his period of ACDUTRA service. Additionally, hypertension, chronic epitaxies, and a respiratory disorder are diseases, and not injuries, and the record does not show the appellant has been diagnosed with chronic epitaxies or a respiratory disorder. The appellant has no periods of active service. He has testified that his hypertension, chronic epitaxies (nose bleeds), and shortness of breath began during his period of ACDUTRA when he was exposed to gunpowder and "gaseous materials." As listed above, the appellant's service treatment records are limited. However, a July 1989 record, which is partially legible which includes a blood pressure reading which does not meet the VA definition of hypertension. In 2013, the appellant testified that he was noted to have "sky high" blood pressure and to have been diagnosed with hypertension during his period of ACDUTRA. However, during his 2010 VA examination he reported he was diagnosed with hypertension in 1991, and during his 2015 VA examination he stated he was unsure of the date he was diagnosed. The private medical records that the appellant provided do not include an initial diagnosis date for hypertension. The earliest record, from 2002, noted the appellant was already diagnosed with hypertension and on medication, but did not indicate when this initial diagnosis occurred, or for how long he had been on medication. As noted, his service treatment records include a 1989 record of normal blood pressure. Given the above, the appellant's testimony that he was initially diagnosed with hypertension in 1988 (during ACDUTRA) is not credible. Regarding the appellant's claim for hypertension, the limited service treatment records do not contain a diagnosis of hypertension, and include a normal blood pressure reading from 1989. The appellant has not provided credible testimony regarding the onset of his hypertension, and the 2015 medical opinion was negative. As such, the evidence does not show that entitlement to service connection for hypertension is warranted. Regarding the appellant's claim for nose bleeds/chronic epitaxies, the limited service treatment records do not contain a complaint of nose bleeds. Additionally, the VA and private treatment records did not include a complaint of nose bleeds or a diagnosis of chronic epitaxies. The only mention of nose bleeds occurred during the appellant's VA examination. He testified that his nose bleeds were a result of "dry" nostrils and that he treated it with "grease." The 2015 medical opinion was negative, there is no medical evidence of a diagnosis of a nose bleed disorder, and there is no medical evidence of a link between his complaints of nose bleeds (which he first noted on his claim in 2010) and his 1988 ACDUTRA service. Additionally, private treatment records included that the appellant had a history of cocaine use. As such, the evidence does not show that entitlement to service connection for nose bleeds is warranted. Regarding the appellant's claim for a respiratory disorder, the Board notes that the appellant was not diagnosed with a respiratory disorder. His chest x-rays and PFTs of record were normal. His private treatment records did not include complaints of shortness of breath, despite the seriousness of that medical symptom. His 2010 VA examination indicated he was working fulltime in construction, and his 2015 statement included that he went jogging every morning. The available service treatment records did not include abnormal respiratory findings. The medical opinion of record is negative. As such, the evidence does not show that entitlement to service connection for a respiratory disorder is warranted. When all the evidence is assembled VA is then 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. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the appellant's claims for service connection for hypertension, nose bleeds, and a respiratory disorder. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for nose bleeds, to include as due to hypertension, is denied. Entitlement to service connection for a disorder resulting in shortness of breath is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs