Citation Nr: 1752768 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 08-34 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for right bundle branch block, also claimed as a heart disorder, to include as due to chemical/lead exposure. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for a bilateral leg disorder, originally claimed as leg cramps. 4. Entitlement to service connection for degenerative bone disease, also claimed as a low back disorder, to include as due to chemical/lead exposure. 5. Entitlement to service connection for depression as secondary to other medical conditions. 6. Entitlement to total disability due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to August 1974. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from June 1999, April 2006, and June 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Roanoke, Virginia, and Albuquerque, New Mexico. The matters on appeal are currently under the jurisdiction of the Roanoke, Virginia RO. In March 2011, November 2013, and December 2016, the Board remanded these matters for further development. The Board notes that a claim for entitlement to nonservice-connected pension benefits has been listed as an issue under appeal in the prior remands. However, in a March 2000 rating decision, the Veteran was granted a permanent and total rating for non-service connection pension, effective February 11, 1999. Therefore, the Board finds this issue is not presently on appeal before the Board. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Any future consideration of this claim should take into consideration the existence of the electronic record. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence is against finding that the Veteran's right bundle branch block, claimed as a heart disorder manifested in service or is related to service. 2. The preponderance of the competent and credible evidence is against finding that the Veteran's headaches manifested in service or are related to service or are secondary to a service-connected disorder. 3. The preponderance of the competent and credible evidence is against finding that the Veteran's bilateral leg disorder, originally claimed as leg cramps manifested in service or are related to service or are secondary to a service-connected disorder. 4. The preponderance of the competent and credible evidence is against finding that the Veteran's degenerative bone disease, also claimed as a low back disorder manifested in service or are related to service or are secondary to a service-connected disorder. Arthritis was not shown within 1 year of separation from service. 5. The Veteran's depression is secondary to his medical disorders but the Veteran's disorders are not service connected. 6. The Veteran has no service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for right bundle branch block, claimed as a heart disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for headaches have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. The criteria for service connection for a bilateral leg disorder, originally claimed as leg cramps have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 4. The criteria for service connection for degenerative bone disease, also claimed as a low back disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 5. The criteria for service connection for depression have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 6. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). The Veteran was provided with the relevant notice and information. He has not alleged any notice deficiency during the adjudication of that claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA's duty to assist under the VCAA includes helping claimants to obtain pertinent records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c). The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159 (c). VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159 (c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79 (2006). For his service connection claims, the Veteran was afforded adequate VA examinations that considered his medical history, his treatment records, a physical examination of the Veteran, and his lay statements and provided opinions supported by adequate rationale. Finally, the Board finds that the AOJ sufficiently complied with the remand directives of the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Law and analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2017). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. VA has amended 38 C.F.R. § 3.310 to reflect that it will not concede aggravation unless certain additional conditions are met. 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Right bunch branch block, claimed as a heart disorder Service treatment records are negative for any complaints, treatment, or diagnosis of a heart disorder. The Veteran underwent VA examination in April 2014. The VA examiner explained that the Veteran has a right bundle branch block, without ischemia, which is a congenital conduction abnormality that is essentially a normal variant. The VA examiner further explained that the Veteran had a normal myocardial perfusion scan, so no ischemic heart disease exists and he has no treated condition. The VA examiner then opined that there was no heart condition and therefore no association with toxic substances in service. The VA's Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. See VAOPGCPREC 82-90, VAOPGCPREC 67-90. A defect differs from a disease in that the former is "more or less stationary in nature" while the latter is "capable of improving or deteriorating." Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (quoting VAOPGCPREC 82-90). Pursuant to the remand directives, the Veteran was afforded another VA examination in March 2017. The VA examiner noted a diagnosis of right bundle branch block in 2000. The examiner stated that the Veteran's heart condition does not qualify as ischemic heart disease and that its etiology is unknown. He opined that the Veteran has right bundle branch block of uncertain origin and that it is not likely congenital and not likely present since birth. The examiner explained that right bundle branch block is "often an incidental finding with no apparent origin and no symptoms or sequelae." He further opined that there is not a superimposed heart problem. The examiner concluded by stating that there is no way to know when the condition began, if the Veteran's condition pre-existed service, and whether it was incurred in or caused by service. The Board finds that the preponderance of evidence is against finding that the Veteran has a heart disorder that was incurred in or due to service. The April 2014 VA examiner opined that the Veteran's right bundle branch block is a congenital defect. The February 2017 VA examiner opined that right bundle branch block is often an incidental finding with no apparent original and no symptoms or sequela. While the February 2017 examiner did not specify whether the Veteran's right bundle branch block was a disease or defect, the totality of his opinion clearly shows that it is not a disease or disorder, but rather an incidental finding with no symptoms. As such, it is not subject to service connection as a disease or injury incurred in service. Although the VA examiner was unable to provide an opinion regarding when the right bundle branch block started, he specifically opined that there is no superimposed heart disease or associated disability. The Veteran has not presented any evidence in support of a finding that he has a heart disorder as a result of service. Therefore, the preponderance of the evidence is against the Veteran's claim and it is denied. Headaches VA treatment records indicate that the Veteran's headaches may be caused by or aggravated by medications taken for his back disorder. See, e.g., May 2011 VA Treatment Record (noting hydrocodone caused the Veteran's headaches to go out of control, causing chronic daily headache) and February 2013 VA Treatment Record (noting increased headaches with hydrocodone in the past). The Veteran underwent a VA examination in February 2017. He reported the onset of his headaches in the 1970s. The examiner opined that the headaches were not a pre-existing condition worsened by his back. Rather, "they are directly caused by his cervical spinal problems. Therefore, the Veteran's claimed headache disorder, is less likely than not proximately due to or the result of a back disorder, to include medication for such disorder." As the Veteran's cervical spine disorder is not service-connected and his headaches have been found to be secondary to his cervical spine disorder, service connection is not warranted and the Veteran's claim is denied. Leg cramps Service treatment records show that upon entry into service in December 1969, the Veteran was noted to have pes planus. In December 1970, the Veteran complained of leg and foot cramps. The physician noted it was due to bilateral flat feet and prescribed arch supports. He returned a few weeks later and the treatment record noted no leg cramps. A July 1974 separation report of medical history shows the Veteran reported recurrent back pain and cramps in his legs. The contemporaneous separation examination shows a normal clinical evaluation of his heart, spine, lower extremities, neurological, and psychiatric systems. The examiner noted a 1971 complaint of "cramps in his legs due to flat feet, no true claudication." At a February 2006 VA examination, the Veteran reported leg cramps since service. They are usually related to standing on his feet all day and are relieved with massage. The examiner concluded that: subjective bilateral leg cramps [were] found and that the Veteran stated that the cramps were related to pain in his feet. He opined that he did not find any chronic disability that can be related to these leg cramps. So basically it is my medical opinion that this veteran's leg cramps were present when he was in the active duty. They did not cause him to have any chronic disability all over the years. It has been same all these years with no evidence that can be related to any chronic disability. It is my medical opinion that this veteran's leg cramps that were present when he was on the active duty are not causing to him to have any chronic disability that would be related to his military service. In a July 2011 statement, the Veteran reported that he started experiencing leg cramps after basic training and has continually suffered from leg cramps since that time. At a May 2013 VA examination, the Veteran again reported experiencing leg cramps since service. The examiner diagnosed the Veteran with episodic idiopathic cramps, uncomplicated. A March 2015 VA opinion provider opined that the Veteran's leg cramps were idiopathic and therefore, by definition, they were not related to any other condition, including his flat foot disability. At a February 2017 VA examination, the examiner opined that "his leg pain is related to compensation for poor foot mechanics and pes planus but [the examiner found] no record of treatment for his muscle cramps in the military." In the June 2017 VA examination report, the examiner opined that the February 2017 examiner's report was "underrated and insufficient." The June 2017 examiner stated that there was no pathology detected to render diagnoses of leg cramps at the present examination. He noted that the Veteran complained of leg cramps during service and it was mentioned to be due to pes planus. The Veteran was recommended arch support and the condition resolved. The examiner opined that it was an acute and self-limited condition as the Veteran also lacked documentation of continuation of symptoms of leg cramps and treatment after the Veteran separated from service. The Board finds that the preponderance of the evidence is against the Veteran's claim. Although the June 2017 VA examiner did not find that the Veteran had leg cramps upon examination, the totality of the evidence reflects that the Veteran's leg cramps are not a disorder that is the result of service or an in-service injury. Rather, they appear to be secondary to his non-service connected pes planus. The Board acknowledges that the Veteran experienced leg cramps in service and post service; however, there is no causal relationship between his leg cramps and any incident of service and therefore, service connection is not warranted. The Board has considered the Veteran's lay statements regarding the symptoms of his leg cramps. The Board finds the Veteran competent and credible to provide evidence regarding what he has experienced. However, his statements regarding causation are not probative in light of the reasoned expert opinions of the VA examiners against the claim. Therefore, the Veteran's claim is denied. Degenerative bone disease and low back disorder The Veteran reports that he has suffered from low back pain and spasms since he injured himself in service while lifting a buffer. Service treatment records show that in January 1974, the Veteran sought treatment for low back pain. He reported a seven year history of back pain. There was no tenderness and studies were within normal limits. The physician assessed "lower back pain due to muscle spasms, treated with physical therapy, NCNS." A lumbar spine x-ray revealed probably or possible transitional lumbar vertebrae. A July 1974 report of medical history shows the Veteran reported recurrent back pain and cramps in his legs. The contemporaneous separation examination shows a normal clinical evaluation of his heart, spine, lower extremities, neurological, and psychiatric systems. The April 2014 VA examiner diagnosed arthritis with an onset date of 2006 and opined that the Veteran's arthritis is less likely than not incurred in or caused by service. The VA examiner explained that such conditions are degenerative in nature, and are a function of chronic use, aging, and the genetic predisposition to develop arthritis. The VA examiner also opined that the Veteran does not have demineralized bone. In a June 2017 VA examination report, the examiner diagnosed the Veteran with degenerative lumbar disc disease. He opined that although the January 1974 x-ray indicated probable or possible transitional lumbar vertebrae, it was not definitive and the Veteran had a documented lack of continuation of care after service. A December 2008 x-ray and April 2009 MRI did not show any evidence of transitional vertebra. The examiner then opined that because the possible transitional vertebrae was an incidental finding, it was not subject to superimposed disease or injury in service. Rather, his in-service low back pain due to muscle spasm was an acute and self-limited condition. Finally, the examiner concluded that his "degenerative lumbar disc disease is more likely from his heavy duty civilian occupation as well as a part of generalized degeneration due to age." Regarding his exposure to harmful chemicals, the examiner opined that "I also reviewed the medical literature about degenerative causes of degenerative lumbar disc disease. I have not found exposed to a variety of harmful chemicals, such as lead, xylene and methyl ethyl ketone, in the course of his duties as a painter during service, and the Veteran's military occupational." [sic]. The Board recognizes that there appear to be transcription errors in this portion of the opinion and it is unclear on its face whether the examiner found the Veteran was exposed to harmful chemicals during service or, if exposed, whether such exposure caused his disorders. However, upon reviewing the VA examiner's opinion in its entirety, it is clear that he did not find the Veteran's disorder to be a result of service or any incident thereof. Therefore, despite the transcription errors, the Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance). The Board finds that the preponderance of the evidence is against the Veteran's claim. Although the Veteran has stated that his degenerative bone disease and low back disorder are a result of service, the Board finds the opinions of the VA examiner to be more probative as to the etiology of his disorders as they are based on medical expertise, an examination of the Veteran, and supported by a reasoned rationale. There is no evidence of arthritis within 1 year following separation from service. Therefore, the Veteran's claim is denied. Depression The Veteran filed a claim of service connection for depression, secondary to his medical disorders. The Veteran underwent a VA mental examination in May 2013 in connection with his claim for depression as secondary to medical conditions. The examiner diagnosed depression and opined that such disorder was secondary to ("proximately as result of') his various physical illnesses. As the Veteran is not in receipt of service-connection for any medical disorders, his claim of secondary service connection must be denied. Moreover, it is not alleged that the disorder started or is otherwise related to in-service occurrence or event. TDIU A total disability evaluation may be assigned where the schedular evaluation is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). When the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16 (a), an extraschedular rating is for consideration when the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In determining whether the Veteran is entitled to a TDIU, neither his non-service connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his level of education, prior work experience, and training. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. Here, the Veteran has no service connected disabilities. Accordingly entitlement to TDIU must be denied. ORDER Service connection for right bundle branch block, also claimed as a heart disorder, is denied. Service connection for headaches is denied. Service connection for a bilateral leg disorder, originally claimed as leg cramps is denied. Service connection for degenerative bone disease and low back disorder is denied. Service connection for depression is denied. A TDIU is denied. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs