Citation Nr: 1752670 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-34 248A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service-connection for a heart disorder. 2. Entitlement to service-connection for an eye disorder. 3. Entitlement to an initial compensable disability rating for hypertension. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1975 to December 1978, from July 1983 to May 1992 and from February 2003 to January 2004. He also had an unverified period of service from June 1979 to July 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In May 2016, the Veteran testified during a Board hearing before the undersigned. A transcript is of record. The matter was previously remanded by the Board in October 2016 for further development. The Board notes that the October 2016 Board decision also remanded the issues of service connection for bilateral foot disorder and low back disorder for further development. However, during the pendency of the appeal, a February 2017 rating decision granted service connection for bilateral pes planus (previously characterized as a bilateral foot disorder) with an evaluation of 50 percent effective May 7, 2010. The February 2017 rating decision also granted service connection for lumbar spondylosis (previously characterized as low back disorder) with an evaluation of 10 percent effective May 7, 2010. Thus, the claims for service connection for bilateral foot disorder and low back disorder have been resolved and are no longer before the Board. The issues of service connection for an eye disorder and an initial increased rating for hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence of record does not indicate a current diagnosis for a heart disorder. CONCLUSION OF LAW The criteria for service connection for a heart disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duty to notify was satisfied by letters dated April 5, 2010, January 25, 2011, and August 4, 2011. 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). VA also satisfied its duty to assist the Veteran in the development of his claims. As noted in the October 2016 Board decision, review of the claims file shows that incomplete service treatment records (STRs) were received in May 2010. Since then the RO requested additional searches for these records, which returned no further information. The Veteran was provided proper notice of the inability to obtain the records, in accordance with 38 C.F.R. § 3.159(e). He was also given an opportunity to provide copies of any treatment records he may have. See VA correspondence dated August 4, 2011. The Veteran responded that he had provided VA with all the service records in his possession and waived the additional time period given to submit any further information or evidence. An August 2011 Memorandum to the file documents VA's attempts to obtain the service treatment records without success. The service treatment records that have been obtained were associated with the claims file along with VA and private medical records. The Veteran has also submitted potentially relevant documents and argument in support of his claim, including personal statements and hearing testimony. Regarding the claimed heart disorder, the record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) 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) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). When aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that it has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Heart Disorder Factual Background Apart from treatment related to high blood pressure, the Veteran's STRs do not show any complaints, symptoms, treatment, or diagnosis for a heart disorder. September 1975, December 1978, October 1991, and August 1999 reports of medical examination noted the Veteran's heart was normal on clinical examination. In September 1975, December 1978, October 1991, and August 1999 reports of medical history, the Veteran denied any heart trouble. In a September 1979 dental questionnaire, the Veteran denied he was ever treated for a heart condition. A February 2003 radiological examination report concluded the Veteran had a normal chest examination. The report noted the cardiac silhouette was normal with no evidence of enlargement. A June 2005 report of medical examination noted the Veteran's heart was normal on clinical evaluation. In a June 2005 report of medical history, the Veteran denied any heart trouble or murmur. A September 2004 VA treatment record noted the Veteran had normal sinus rhythm with T wave abnormality and to consider anterior ischemia. The provider also noted an abnormal electrocardiography (ECG or EKG) and that there were no previous ECGs available. The provider suggested further testing. A July 2007 VA treatment record noted the Veteran had normal sinus rhythm with sinus arrhythmia and nonspecific T wave abnormality. The provider also noted abnormal ECG but that when comparing to the August 2004 ECG, T wave inversion no longer was evident in anterior leads. VA treatment records have consistently noted a prior medical history of nonspecific abnormal electrocardiogram. However, there has been no heart disorder associated with the abnormal findings. In the May 2016 Board hearing, the Veteran reported that he was claiming a heart condition that was possibly caused by his hypertension. The Veteran reported that he experienced heart pounding and difficulty breathing and that the doctors he visited had not figured out what was wrong with him. The Veteran also reported that he started feeling these symptoms during his last active period of service and that he constantly went to sick call. However, he reported these records were lost. In a February 2017 VA examination, the examiner found that the Veteran had not been diagnosed with a heart condition. The examiner noted the Veteran's reports that in 2003 he was informed that he may have an abnormality in his heart. However, the Veteran indicated during examination that he was not sure what the diagnosed condition was and that the medical records from the time of encounter were lost. The examiner noted the Veteran's previous ECGs had demonstrated non-specific ST-T abnormality but were otherwise unremarkable. The Veteran reported occasional chest discomfort and shortness of breath and that his exercise tolerance was limited to one block and was limited by generalized fatigue. The examiner noted that February 2017 EKG results included sinus arrhythmia and non-specific ST-T changes. After examination, the examiner concluded the Veteran had no diagnosable heart condition. Analysis The competent medical evidence of record does not indicate that the Veteran has a current diagnosis for a heart disability. The Board notes that the Veteran has had abnormal ECGs. The Board also acknowledges the Veteran's complaints of shortness of breath and heart pounding. However, test results or symptoms, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a 'disability' for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); see 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (although the Veteran is competent to describe symptoms of pain, pain, alone, without a sufficient factual showing that the pain is derived from the in-service injury is not a disability). The term "disability" as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The Veteran, as a lay person, is competent to describe observable symptoms such as shortness of breath and heart pounding. See Layno v. Brown, 6 Vet. App. 465 (1994). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to the diagnosis of a heart disorder falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Some medical issues require specialized training and testing for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. The record does not establish that the Veteran had medical training. Moreover, neither the Veteran nor his representative has produced medical evidence or other competent evidence that indicates that the Veteran has a current diagnosis of a heart disorder that may be associated to active service. There is no competent evidence to establish a current diagnosis of heart diagnosis. Instead, the Veteran admitted in the May 2016 Board hearing that none of the doctors he visited had been able to ascertain what his claimed heart related symptoms were. Furthermore, in the February 2017 VA examination, the most probative evidence of record, the examiner, after a thorough review of the Veteran's claims file and after specifically addressing the abnormal ECGs, had opined that there was no diagnosable heart disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C.A. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the competent medical evidence of record does not reflect a current diagnosis for a heart disorder, the Board finds that service connection is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a heart disorder. ORDER Entitlement to service-connection for a heart disorder is denied. REMAND The Board previously remanded the issue of entitlement to increased rating for the Veteran's hypertension in October 2016. The Board had noted the Veteran's claim that his service-connected hypertension was more disabling than his last VA examination in April 2010. As such, the Board remanded, in part, for a VA examination to determine the disability's current severity. A review of the claims file does not show that a VA examination was conducted for the Veteran's hypertension pursuant to the October 2016 Board remand directives. Accordingly, the Veteran should be afforded a new, adequate, Stegall-compliant VA examination for the service-connected hypertension. Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board also previously remanded the issue of service connection for an eye disorder in October 2016. The Board remanded, in part, for a VA ophthalmology examination to identify all eye disorders and to determine whether each eye disorder identified was related to the Veteran's military service or the Veteran's service-connected hypertension. Pursuant to the October 2016 Board remand directives, the requested VA examination was conducted in February 2017. The February 2017 VA examiner addressed the VA eye treatment records associated with the claims file and noted in both eyes that there was lattice degeneration, physiologic cupping, refractive error, and that there was no diabetic retinopathy. However, VA treatment records as recent as 2016 noted the Veteran had a diagnosis of cataracts in both of his eyes, which the examiner failed to address. An addendum opinion is necessary since not all eye disorders have been identified and the associated etiological opinion needs to be obtained as requested. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected hypertension. The electronic claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must conduct a detailed examination and report all manifestations of the Veteran's hypertension disability, including the predominant diastolic pressures and systolic pressures; and state whether continuous medication is required for control of the hypertension. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. 2. The Veteran's file should be returned to the February 2017 VA eye examiner (or if she is unavailable, to another suitably qualified examiner) for a medical opinion to determine the nature and etiology of any eye disorder that may be present, to include cataracts. The electronic claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. For each eye disorder identified, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability, or greater) began in or is otherwise related to the Veteran's military service. In the alternative, the examiner should address the question of whether it is at least as likely as not (a 50 percent probability, or greater) any diagnosed eye disorder is (a) caused by, or (b) aggravated (i.e., permanently worsened beyond its normal progression) by any of his service-connected disabilities. 3. Then, readjudicate the claims on appeal. If the decision is adverse to the Veteran, issue a supplement statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the 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. ______________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs